UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE 
LAW  RELATING  TO 

CONFLICTING   USES 
OF  ELECTRICITY 


AND 


ELECTROLYSIS 


BY 
GEORGE  F.  DEISER 

OF  THE  PHILADELPHIA  BAB 


PHILADELPHIA 

T.  &  J.  W.  JOHNSON  CO- 
1911 


T 


COPYRIGHT,    1911 
BY 

T.  &  J.  W.  JOHNSON  CO. 


PREFACE 


The  purpose  of  this  volume  is  to  treat  exhaustively  a 
very  limited  and  very  recent  development  of  the  law.  The 
decisions  upon  the  subject  are  not  numerous,  and  the 
author  has  tried  to  include  all  that  have  appeared  to  the 
present  date.  This  is  the  first  attempt,  to  the  author's 
knowledge,  to  collect  the  cases  upon  Electrolysis,  and  as 
they  will  doubtless  have  a  far-reaching  influence,  they 
have  been  discussed  very  fully.  The  author  desires  to  ex- 
press his  appreciation  of  the  kindly  services  rendered  by 
John  W.  Wright,  E.  E.,  of  the  Bell  Telephone  Company 
of  Pennsylvania,  for  many  useful  suggestions  and 
through  discussion  with  whom  the  writer  first  became 
interested  in  the  subject. 

The  facts  of  some  of  the  cases  have  been  stated  at  times 
in  great  detail  as  the  lawyer  who  conducts  litigation  of 
this  kind  is  interested  to  know  how  far  affirmative  proof 
must  go  to  justify  the  court  in  interfering.  It  is  for  that 
reason,  that  in  one  instance,  the  plaintiff's  bill  of  com- 
plaint has  been  given  in  full.  The  writer  will  appreciate 
information  of  any  omissions  that  may  come  to  the  knowl- 
edge of  those  who  read  this  little  work.  He  has  striven 
to  make  it  complete  and  useful ;  apparently  the  dominant 
tests  of  the  value  of  modern  effort. 

GEORGE  F.  DEISER. 
Philadelphia,  September  i,  1911. 


CONTENTS 


PART  I. 

THE  LAW  RELATING  TO  THE  USE  OF  ELECTRICITY 
CHAPTER  I. 

LEGAL  POSITION  OF  ELECTRICAL  COMPANIES. 

1.  Franchise  holders  distinguished  from  citizens. 

2.  Conflicts  in  the  exercise  of  franchises. 

3.  Scope  of  this  inquiry. 

4.  Conflicting  uses  of  Electricity. 

5.  Nature  of  franchises. 

6.  Fundamental  principles. 

6a.  Telephone  companies  and  telegraph  companies,  a  burden 
upon  the  highway. 

7.  Telephone  company  is  a  telegraph  company. 

8.  They  must  not  interfere  with  public  travel. 

9.  The  English  doctrine. 

10.  Street  railways  have  no  exclusive  right  to  the  highway. 

11.  The  railway  a  dominant  franchise. 

CHAPTER  II. 

CONFLICTS    IN    THE    USE    OF    ELECTRICITY    PRODUCED    BY 
STREET  RAILWAYS. 

12.  The  operating  and  construction  of  a  railway  cannot  be 

enjoined  if  lawful. 

13.  Summary  of  principles. 

14.  The  kind  of  relief  open  to  a  telephone  company. 

15.  The  telephone  apparatus  must  be  efficient. 

CHAPTER  III. 

AGAINST  WHAT,  RELIEF  MAY  BE  GRANTED. 

16.  A  railway  company  not  protected  in  aggression. 

17.  Acts  constituting  a  nuisance  may  be  restrained. 

vii 


Vlll  CONTENTS. 

18.  Principles  established  in  the  case  of  Hudson,  etc.,  v.  Wat- 

ervliet  Turnpike  Company. 

19.  The  principles  sound  in  view  of  the  relief  sought. 

20.  Franchise  holders  may  not  encroach  upon  private  property. 

21.  They  must  use  the  most  efficient  means  at  their  command. 

22.  What  are  efficient  means? 

23.  No  exclusive  right  to  use  the  earth  as  H,  return  circuit. 

24.  Interference  with  submarine  cables. 

25.  Defective  construction  of  a  railway  must  be  remedied. 

CHAPTER  IV. 
INJUNCTIONS  AND  OTHER  REMEDIES. 

26.  Invasion  by  a  new  franchise  holder  enjoinable. 

27.  Direct  interference  by  a  railway  may  be  restrained. 

28.  Railway  may  be  compelled  to  erect  guards. 

29.  Injury  due  to  lawful  operation  distinct  from  aggression. 

30.  Accommodation  of  conflicting  franchises. 

31.  First  franchise  on  given  territory  not  exclusive. 

32.  Ordinances  requiring  guard  wires. 

33.  Principle  of  dominant  use  of  highway.    Application. 


CHAPTER  V. 

ENGLISH  AND  CANADIAN  DOCTRINES. 

34.  The  English  point  of  view. 

35.  Effect  of  English  doctrine.    Application  to  submarine  cable. 

36.  Doctrine  of  statutory  immunity. 

37.  Canadian  authorities. 

38.  Private  persons  cannot  restrain  exercise  of  electric  fran- 

chises. 

CHAPTER  VI. 

PRIORITY  OF  FRANCHISE  AS   CONFERRING  VESTED  RIGHTS. 

39.  First  franchise  holder  must  not  be  disturbed. 

40.  Priority  in  a  given  territory  gives  vested  rights. 

41.  Exclusive  franchises  against  public  policy. 

42.  Invading  companies  may  be  restrained. 

43.  But  private  uses  must  give  way  to  public  ones. 


CONTENTS.  IX 

CHAPTER  VII. 

PRINCIPLES    BEARING    ON     CONFLICTING    USES    OF    ELEC- 
TRICITY. 

44.  Consequences  of  doctrine  that  railway  is  a  dominant  use  of 

the  highway. 

45.  Facts  for  the  jury. 

46.  Statutory    authority   answers   claim   that    franchise   is    a 

nuisance. 

47.  Does  the  electric  light  facilitate  travel? 

48.  The  doctrine  of  Rylands  v.  Fletcher. 

49.  Contrast  of  English  and  American  principles. 


CHAPTER  VIII. 

ADJUSTMENT  ON  EQUITABLE  PRINCIPLES.     SUMMARY. 

50.  The  equitable  treatment  of  conflicting  uses. 

51.  Relief  where  a  railway  unnecessarily  interferes. 

52.  What  kind  of  relief  may  be  sought. 

53.  The  street  railway  is  a  burden  on  country  highways. 

54.  The  discharge  of  electricity  into  the  earth  as  a  nuisance. 

55.  Summary  of  principles. 


PART  II. 

THE  LAW  RELATING  TO   ELECTROLYSIS 
CHAPTER  IX. 

ELECTROLYSIS. 

56.  Electrolysis — The  problem.    Definitions.    The  Peoria  Case. 

57.  Statement  of  facts. 

58.  Determination  of  existence  of  electrolysis.     Tracing  the 

cause. 

59.  Notice  to  defendants. 

60.  Rapidity  of  electrolytic  action. 


X  CONTENTS. 

61.  Elimination  of  possible  explanations. 

62.  Differences  in  potential. 

63.  Suggested  remedies. 

64.  Railways  negative  return  system. 

65.  Summary  of  facts. 

66.  Conclusions  of  law. 

67.  Electrolysis  a  permanent  and  continuing  injury. 

68.  License  to  operate  a  railway  does  not  justify  injury  to 

others. 

69.  The  injury  results  from  defendant's  acts. 

70.  The  injury  is  actionable. 

71.  The  remedy. 

72.  Investigation  of  possible  remedies. 

73.  Metal  consumed  by  electrolysis. 

74.  Bonding  as  a  remedy. 

75.  Difference  of  potential  necessary  to  produce  electrolysis 

76.  Definition  of  electrical  terms. 

77.  Electrolysis  defined. 

78.  Court  cannot  specify  kind  of  remedy. 

79.  Injunction  to  restrain  injury  by  electrolysis. 

80.  Principles  of  general  application. 

81.  Electricity  a  dangerous  agent. 

82.  English  cases  of  electrolysis. 

83.  Public  and  private  duties  of  public  service  corporations. 

84.  Municipality  may  restrain  electrolysis. 

85.  Faulty  construction  must  be  remedied. 

86.  Principles  established. 

87.  Summary  of  the  law  relating  to  electrolysis. 


TABLE  OF  CASES. 


A. 

PAGE 

Agincourt  Steamship  Co.  v.  Eastern  Extension  Co.,  76  L.  J. 

(K.  B.)  884,  10 

American  Telephone  &  Telegraph  Co.  v.  Morgan  County 

Telephone  Co.,  138  Ala.  597;  36  So.  178,  58 

Angell  &  Durfee  on  Highways,  3rd  Ed.,  Sec.  2,  5 

Atchison,  T.  &  S.  F.  Co.  v.  The  Denver  &  N.  0.  R.  C.,  110 

U.  S.  667,  112 

Attorney-General  v.  Edison  Telephone  Co.,  of  London,  L. 

R.  6  Q.  B.  D.  244,  7 

B. 

Bell  Telephone  Co.  v.  Belleville  Elec.  Light  Co.,  12  Ontario, 

571,  55 

Bell  Telephone  Co.  v.  Montreal  Street  Railway  Co.,  6  Q. 

B.  223,  (Rapports  Judiciares  de  Quebec),  53 

Birmingham  Traction  Co.  v.  Southern  Bell  Telephone  Co., 

119  Ala.  144;  24  So.  731,  41 

Blanchard  v.  Western  Union  Telegraph  Co.,  60  N.  Y.  510; 

1  Am.  Elec.  Cas.  176,  27,  8 

Block  v.  Milwaukee  St.  Railway  Co.,  89  Wis.  371;  27  L. 

R.  A.  365;  61  N.  W.  1101,  69 

Board  of  Trade  Telegraph  Co.  v.  Barnett,  107  111.  507;  1 

Am.  Elec.  Cas.  565,  27,  10 

Briggs  v.  Lewiston  &  Auburn  Horse  R.  R.  Co.,  79  Me.  363; 

10  Atl.  Rep.  47,  5 

C. 

Central  Pennsylvania  Telephone  &  Supply  Co.  v.  Wilkes- 

Barre  &  Westside  Railway  Co.,  11  Pa.  C.  C.  417;  4  Am. 

Elec.  Cas.  260,  37,  5 

Central  Union  Telephone  Co.  v.  Sprague  Elec.  Ry.,  etc.  Co. 

and  the  Akron  St.  R.  R.  Co.,  2  Am.  Elec.  Cas.  307,  55 

Chepstow  Elec.  Lt.  &  Power  Co.  v.  Chepstow  Gas  &  Coke 

Consumers  Co.,  L.  R.  (1905)  1  K.  B.  198,  120 

Chesapeake  &  Potomac  Telephone  Co.,  The,  v.  Baltimore  & 

Ohio  Telegraph  Co.,  66  Md.  399 ;  7  Ala.  Rep.  809,  7 

Chicago  v.  Baer,  41  Ills.  306,  40,  58 

xi 


Xll  TABLE  OF  CASES. 

PAGB 

Chicago  Telephone  Co.  v.  Northwestern  Telephone  Co.,  199 

Ills.  324;  64  N.  E.  329,  affirming  100  Ills.  App.  57,  57,  58 
Clara  Killam,  The,  39  L.  J.  50,  9 

Cogswell  v.  The  New  York,  New  Haven  &  Hartford  Railway 

Co.,  103  N.  Y.  10;  8  N.  E.  537,  28,  87 

Commonwealth  v.  West  Chester,  9  Pa.  C.  C.  542,  53 

Consolidated  Elec.  Light  Co.  v.  People's  Elec.  Light  &  Gas 

Co.,  49  Ala.  372;  10  So.  440,  56 

Cumberland  Telegraph  &  Telephone  Co.  v.  The  United  Elec. 

Ry.  Co.  93  Tenn.  492;  29  S.  W.  104;  27  L.  R.  A.  236,  76 
Cumberland  Telephone  &  Telegraph  Co.  v.  The  United  Elec. 

Ry.  Co.,  42  Fed.  Rep.  273;  12  L.  R.  A.  544;  3  Am. 

Elec.  Gas.  408,  60,  44,  43 

D. 

Davis  v.  Mayor,  14  N.  Y.  506,  10 

Davis  v.  Smith,  130  Mass.  113,  5 

Dayton  v.  Railway  Co.,  26  Ohio  C.  C.  R.  736,  121 

E. 

Eastern   &    South  African   Telegraph    Co.    v.    Cape    Town 

Tramways  Co.,  L.  R.  App.  Gas.  381,  119,  36,  32 

Easton  v.  New  York  &  Long  Branch  Railway  Co.,  24  N.  J. 

Equity  49,  32 

Easton  v.  Railroad  Co.,  24  N.  J.  Equity  58,  10 

East  Tennessee  Telephone  Co.  v.  Knoxville  Street  Railway 
Co.,  3  Am.  Elec.  Cas.  400,  48 

East   Tennessee  Telephone  Co.  v.   The   Chattanooga  Elec. 

Street  Railway  Co.,  2  Am.  Elec.  Cas.  323,  55 

Edison  Electric  Light  &  Power  Co.  v.  Merchants'  &  Manu- 
facturers' Elec.  Light,  Heat  &  Power  Co.,  200  Pa. 
209;  49  A.  766,  56 

Elliott  on  Roads  &  Streets,  3rd  Ed.,  Sec.  1,  5 

Express  Cases,  117  U.  S.  1,  112 

G. 

Goldrick  v.  Union  Railroad  Co.,  20  R.  I.  128;  37  Atl.  Rep. 

635,  11 

Grand  Rapids  Elec.  Light  &  Power  Co.  v.  Grand  Rapids  E. 

E.  L.  &  F.  G.  Co.,  33  Fed.  Rep.  659,  66 

H. 

Hinchman  v.  The  Paterson  Horse  Railway  Co.,  17  N.  J. 

Equity  75,  32,  10,  5 


TABLE  OF  CASES.  Xlll 

PAGE 

Hobart  v.  Milwaukee,  et.,  27  Wis.  194,  5 

Hudson  v.  Jersey  City,  49  N.  J.  L.  303,  57 

Hudson  River  Telephone  Co.  v.  Watervliet  Turnpike  & 

Railway  Co.,  135  N.  Y.  393;  32  N.  E.  148;  17  L.  R.  A. 

674;  4  Am.  Elec.  Gas.  275,  6,  12,  125 

Hussner  v.  Brooklyn  City  R.  R.,  114  N.  Y.  437;  21  N.  E. 

1002,  86 

I. 

Illinois  Central  Railroad  Co.  v.  City  of  Chicago,  141  Ills. 
586;  30  N.  E.  1036,  60 

J. 

Julia  Bldg.  Assn.  v.  Bell  Telephone  Co.,  13  Mo.  App.  477,        69 

L. 

Lahr  v.  Met.  E.  R.  R.  Co.,  104  N.  Y.  268, 10  N.  E.  528  35,  17 
Lake  shore  &  M.  S.  Railroad  Co.  v.  Chicago  L.  S.  &  S.  S. 

Railway  Co.,  92  N.  E.  989,  117 

Lake  St.  Elec.  Railway  Co.  v.  Chicago,  183  His.  75;  55  N. 

E.  721,  40 

Lockhart  v.  Craig  St.  Railway  Co.,  135  Pa.  419;  21  Atl. 

Rep.  26,  53 

Louisville  Home  Telephone  Co.  v.  Cumberland  Telephone  & 

Telegraph  Co.,  Ill  Fed.  Rep.  663,  reversing  110  Fed. 

Rep.  593,  58,  43 

M. 

Marsh  v.  Lake  Shore  Elec.  Railway  Co.,  5  Ohio  C.  C.  R. 

(N.  S.)  405,  127 

Midwood  &  Co.,  Ltd.  v.  Manchester  Corporation,  L.  R. 

(1905)  2  K.  B.  597,  117 

Monongahela  L.  &  R.  Co.  v.  Rose  Hill  Elec.  Lt.  Co.,  30  P. 

L.  J.  (Pa.)  301 ;  9  Am.  Elec.  Gas.  838,  56 

Montgomery  Lt.  &  W.  P.  Co.  v.  Citizens'  L.  H.  &  P.  Co., 

147  Ala.  359;  40  So.  981;  9  Am.  Elec.  Gas.  776,  56 

Morris  &  Essex  Railway  Co.  v.  Newark  Passenger  Railway 

Co.,  51  N.  J.  Equity  379 ;  29  Atlantic  184,  68 

Mt.  Adams  &  Eden  Park  Incline,  etc.,  Co.  v.  Howard  Wins- 
low,  3  Ohio  C.  C.  R.  425;  2  Am.  Elec.  Gas.  262,  27,  6 

N. 

National    Telephone    Co.    v.   Baker,   L.   R,    (1893)    2    Ch. 

186,  49,  118,  125 


XIV  TABLE  OF  CASES. 

PAGE 

Nebraska  Telephone  Co.  v.  York  Gas  &  Elec.  Co.,  27  Neb. 

284;  43  N.  W.  126;  3  Am.  Elec.  Cas.  364,  57,  65 

New  York  Cable  Co.  v.  Meyer,  etc.,  104  N.  Y.  1;  10  N.  E. 

332,  16 

Northwestern  Telephone  Co.  v.  Twin  City  Telephone  Co.,  89 

Minn.  495;  95  N.  W.  460,  55 

P. 

Panton  v.  Holland,  17  Johns  (N.  Y.)  99,  87 
Paris  Elec.  Light  &  Railway  Co.  v.  Southwestern  Telegraph 

&  Telephone  Co.,  5  Am.  Elec.  Cas.  262,  65 

Pelton  v.  East  Cleveland  Railroad  Co.,  3  Am.  Elec.  Cas.  215,  53 
Pennsylvania  Co.  v.  City  of  Chicago,  181  Ills.  289 ;  54  N.  E. 

825,  58 
Pennsylvania  R.  R.  Co.  v.  Montgomery  County  Passenger 

Railway  Company,  167  Pa.  62 ;  31  Atlantic  Rep.  468,  85 

Pennsylvania  Telephone  Co.  v.  Hoover,  24  Pa.  Super.  Ct.  96,  8 

People  v.  Kerr,  27  N.  Y.  188,  5 

People,  etc.  v.  O'Brien,  111  N.  Y.  1;  18  N.  E.  692,  17 
People  ex  rel.  N.  Y.  E.  L.  Co.  v.  Squire,  107  N.  Y.  593;  14 

N.  E.  500,  48 
Peoria  Waterworks  v.  Peoria  Railway  Co.,  181  Fed.  Rep. 

990,                                                                     44,  73,  92,  113 

R. 

Radcliff  v.  Mayor,  4  N.  Y.  195,  198,  87 

Railway  Co.  v.  Chicago,  183  Ills.  75;  55  N.  E.  721,  58 

Railway  Co.  v.  Heisel,  38  Mich.  62,  10 

Railway  Co.  v.  Telegraph  Association,  48  Ohio  390;  27  N. 

E.  890;  12  L.  R.  A.  534,  21 

Rhodes  v.  Dunbar,  57  Pa.  274,  29 

Rich  v.  Chicago,  152  Ills.  18;  38  N.  E.  255,  40,  58 

Richmond  v.  Southern  Bell  Telephone  Co.,  174  U.'  S.  761,  70,  8 
Rule  in  Rylands  v.  Fletcher,  by  Prof.  Francis  H.  Bohlen, 

U.  of  P.  Law  Review  and  American  Law  Register,  Vol. 

59,  72,  127 

Rutland  Elec.  Light  Co.  v.  Marble  City  Elec.  Light  Co.,  65 

Vt.  377;  26  Atl.  Rep.  635;  27  L.  R.  A.  821;  4  Am.  Elec. 

Cas.  256,  57 

Rylands  v.  Fletcher,  3  H.  L.  C.  330,  35,  49,  51,  71 

S. 

Simmins  v.  City  of  Toledo,  8  Ohio  C.  C.  R.  535,  69 

Smith  v.  Tele.  Co.,  2  Ohio  C.  C.  R.  259,  27 


TABLE    OF    CASES.  xv 

PAGE 

Spring  Valley  Water  Co.  v.  San  Francisco,  165  Fed.  Rep. 

667,  668,  113 

Stackpole  v.  Healey,  16  Mass.  33 ;  8  Am.  Dec.  121n,  5 
State  v.  Janesville  Street  Railway  Co.,  87  Wis.  72;  57  N. 

W.  970 ;  4  Am.  Elec.  Cas.  289,  44 

State  v.  Proctor,  90  Mo.  334;  2  S.  W.  472,  5 

Story  v.  N.  Y.  E.  R.  R.  Co.,  90  N.  Y.  122,  17 

Street  Railway  v.  Cumminsville,  14  Ohio  546,  5 
Submarine  Telegraph  Co.  v.  Dickson,  15  C.  B.  (N.  S.)  75; 

106  English  Common  Law  Reps.,  9 

T. 

Taggart  v.  Newport  Street  Railway  Co.,  16  R.  I.  668;  19 

Atlantic  326,  70 

Telephone  Co.  v.  Railway  Co.,  3  Am.  Elec.  Cas.  350,  60 

Third  Avenue  Railway  v.  Newton,  112  N.  Y.  396;  19  N.  E. 

831,  15 

Townsend  v.  Norfolk  Railway  Light  Co.,  105  Va.  22 ;  4  L.  R. 

A.  (N.  S.)  87,  120 

Tracy  v.  Troy  &  Lansingburgh  R.  R.  Co.,  54  Hun.  550;  3 

Am.  Elec.  Cas.  227,  53 

Transportation  Co.  v.  Chicago,  99  U.  S.  635,  10 

W. 

Western  Union  Telegraph  Co.  v.  Champlain  Elec.  Light  Co., 

14  Gin.  Law  Bulletin  327,  39 

Western  Union  Telegraph  Co.  v.  Guernsey  &  Scudder  Elec. 

Light  Co.,  46  Mo.  App.  120;  3  Am.  Elec.  Cas.  425,  42 

Western  Union  Telegraph  Co.  v.  Los  Angeles  Elec.  Co.,  6 

Am.  Elec.  Cas.  202,  65 

Western  Union  Telegraph  Co.  v.  New  York,  38  Fed.  Rep. 

552,  48 

Western  Union  Telegraph  Co.  v.  Rich,  19  Kans.  517,  71 

Wettengel  v.  Allegheny  County  Light  Co.,  223  Pa.  79,  67 

Willis  v.  Erie  T.  &  T.  Co.,  34  N.  W.  337,  27 

Wisconsin  Telephone  Co.  v.  City  of  Oshkosh,  62  Wis.  32; 

21  N.  W.  828;  1  Am.  Elec.  Cas.  687,  7 

Wisconsin  Telephone  Co.  v.  Eau  Claire  Street  Railway  Co., 

3  Am.  Elec.  Cas.  383,  11,  48 


PART  I. 
THE  LAW  RELATING  TO 

CONFLICTING   USES   OF 
ELECTRICITY 


CHAPTER  I. 

LEGAL  POSITION  OF  ELECTRICAL  COMPANIES. 

1.  Franchise  holders  distinguished  from  citizens. 

2.  Conflicts  in  the  exercise  of  franchises. 

3.  Scope  of  this  inquiry. 

4.  Conflicting  uses  of  Electricity. 

5.  Nature  of  franchises. 

6.  Fundamental  principles. 

6a.  Telephone  companies  and  telegraph  companies,  a  burden 
upon  the  highway. 

7.  Telephone  company  is  a  telegraph  company. 

8.  They  must  not  interfere  with  public  travel. 

9.  The  English  doctrine. 

10.  Street  railways  have  no  exclusive  right  to  the  highway. 

11.  The  railway  a  dominant  franchise. 

1.    Franchise  holders  distinguished  from  citizens. 

The  common  law  principle  that  no  wrong  should  go 
unredressed  is,  in  most  cases,  where  the  wrong  is  simply 
an  injury  wrought  by  one  to  his  neighbor,  of  simple  appli- 
cation. The  origin  of  a  blow,  of  an  explosion,  or  of  a 
collision  is  not  usually  difficult  to  trace.  But  the  insidious 
progress  of  a  decay  wrought  by  the  subtler  natural  agents 
harnessed  by  industry,  creates  problems,  in  which  rights 
so  overlap  that  one  can  scarcely  say,  whatever  the  con- 
clusion reached  by  a  court  of  law,  that  substantial  justice 


2  CONFLICTING  USES  OF  ELECTRICITY. 

has  been  done.  A  citizen,  the  embodiment  of  certain  defi- 
nite legal  as  well  as  natural  rights,  as  citizen,  must  be  reck- 
oned with  in  an  equally  definite  way,  when  some  of  those 
rights  have  been  violated.  As  he  steps  out  of  his  armor, 
however,  secures  concessions  and,  in  common  with  oth- 
ers, begins  to  play  with  the  energies  left  at  his  disposal  by 
nature,  he  and  his  rivals  become  involved  in  situations,  in 
which  conflicting  rights  seem  to  baffle  any  equitable 
adjustment. 

2.  Conflicts  in  the  exercise  of  franchises. 

A  corporation  is  authorized  to  propel  railway  cars  by 
means  of  electricity,  the  current  passes  through  the  car 
into  the  rail  and  thence  to  the  earth ;  it  enters  the  frame- 
work of  an  office  building,  sets  up  an  electrolytic  action 
and  the  building  is  damaged.  This  is  a  problem  of  some 
difficulty.  But,  assuming  electricity  to  be  a  dangerous 
agent,  and  an  innocent  person  in  the  enjoyment  of  his 
property  harmed  by  its  escape,  we  might  reasonably  sup- 
pose that  the  courts  would  find  some  grounds  of  liability. 
But  let  the  current  of  electricity  remain  in  the  street  and 
interfere  with  the  electric  current  in  use  by  the  telephone 
company,  and  the  problem  is  of  another  sort.  For  the  per- 
sons using  the  street  are  not  citizens,  but  licensees,  and 
each  one  holds  his  rights  in  subordination  to  those  of  the 
public,  and  the  other  licensees.  In  consequence,  if  the  use 
made  of  the  street  by  one  public  service  corporation, 
injures  the  property  placed  there  by  another  public  service 
corporation,  the  injury  being  neither  wanton  nor  the 
result  of  negligence,  the  question  is  no  longer  that  of  the 
use  of  dangerous  agents,  but  of  the  relative  importance 
of  the  franchises. 

3.  Scope  of  this  inquiry. 

The  inquiry  here  proposed,  is  directed  to  an  examina- 


LEGAL  POSITION  OF  ELECTRICAL  COMPANIES.  3 

tion  of  the  respective  rights  and  liabilities  of  electric  rail- 
way companies,  telegraph  and  telephone  companies,  gas 
and  water  companies,  and  electric  light,  heat  and  power 
companies  under  such  circumstances.  To  keep  the  in- 
quiry free  from  confusion  it  is  necessary  to  premise  that 
the  rights  and  liabilities  involved,  do  not  depend  upon  the 
fact  that  the  person  through  whom  the  injury  is  worked 
is  or  is  not  a  corporation. 

4.    Conflicting  uses  of  electricity. 

What  then,  assuming  the  street  railway,  telegraph  and 
telephone  companies  and  electric  light,  heat  and  power 
companies  to  be  in  occupation  of  the  same  street  or  streets, 
are  the  conflicts  that  may  arise?  Certain  facts  are  com- 
mon to  all  of  the  legal  scientific  problems  created  by  sev- 
eral users  of  electricity  in  a  given  territory. 

Telephone  and  telegraph  companies  use  on  their  lines 
low  or  moderate  voltages  and  small  quantities  of  current. 

Electric  light  companies  or  electric  railways  transmit^ 
ting  power  for  the  performance  of  useful  work  employ  in 
general  higher  voltages  and  transmit  considerably  more 
current  over  their  circuits  than  telegraph  and  telephone 
companies. 

In  figures,  the  telephone  companies  use  about  24  to  48 
volts;  the  telegraph  companies  about  150  volts;  the  trol- 
ley companies  from  500  to  1,000  volts;  electric  light  com- 
panies from  no  to  10,000  volts  or  more. 

A  higher  pressure  of  electricity  tends  to  influence  all 
lower  pressures  in  its  immediate  neighborhood ;  it  has  an 
inclination  to  overflow  and  raise  the  pressure  on  all  wires 
of  lower  pressure  within  certain  distances  of  it. 

Telephone  and  telegraph  companies  can  scarcely  main- 
tain their  service  in  the  vicinity  of  very  powerful  currents 
of  electricity  without  the  aid  of  special  apparatus,  while 
electric  light  or  power  companies  using  a  low  voltage  are 


4  CONFLICTING  USES  OF  ELECTRICITY. 

in  a  similar  peril  from  companies  using  a  very  high  volt- 
age.   These  are  typical  problems. 

5.    Nature  of  franchises. 

The  principle  upon  which  cases  of  conflicting  rights 
must  be  worked  out  is  that  the  parties  have  abandoned 
their  position  as  citizens  and  have  assumed  an  entirely  new 
relationship,  in  order  to  conceive  which,  it  is  necessary 
to  disencumber  the  mind  of  established  notions  of  inher- 
ent rights  and  inviolable  privileges. 

A  person,  natural  or  artificial,  who  secures  a  concession 
from  the  government  of  a  city  or  other  municipality  to 
occupy  streets  or  other  public  property  for  the  purpose  of 
supplying  some  public  want,  a  franchise  in  other  words, 
enters  upon  a  peculiar  relationship  which  is  dependent, 
not  upon  his  status  as  a  citizen,  but  upon  the  terms  of  his 
contract  or  license.  It  must  be  recognized  further  that  the 
keenness  of  public  wants  varies.  The  need  or  desire  for 
telephone  service  may  or  may  not  be  greater  than  that 
for  gas  pipes  or  trolley  service.  Moreover,  of  necessity, 
concessions  or  franchises  in  the  same  streets  are  fre- 
quently, nay  generally,  granted  to  all  three  of  the  licensees 
under  discussion,  viz.,  telegraph,  telephone,  electric  and 
trolley  companies.  It  will  be  perceived  readily  enough 
that  the  remedy  for  an  injury  resulting  to  one  licensee  or 
holder  of  a  franchise  from  the  mere  exercise  of  the  fran- 
chise by  another  licensee  is  somewhat  difficult  to  apply. 
But  recalling  that  a  corporation  holding  a  franchise  is  not 
a  citizen  with  inherent,  indefeasible  rights,  but  such  only 
as  grow  out  of  the  privilege  granted  him,  (as  to  the  exer- 
cise of  the  franchise)  some  approximation  of  the  only 
result  possible  in  cases  of  conflicting  interests  may  be 
reached. 


LEGAL  POSITION  OF  ELECTRICAL  COMPANIES.  5 

6.    Fundamental  principles. 

There  are  certain  facts  and  principles  which  are  univer- 
sally true.  Differences  of  opinion  do  not  arise  so  much 
from  doubt  as  to  fundamental  principles,  but  from  the 
difficulty  of  determining  in  the  case  of  conflicting  fran- 
chises both  acting  lawfully,  where  natural  equity  cannot 
be  thrown  into  the  scales  of  justice  without  absolutely  de- 
stroying legal  principles.  Let  us  examine  first,  the  princi- 
ples that  hold  true  universally. 

It  must  be  premised  first,  that  the  street  or  highway  is 
public  property,  the  title  to,  and  control  over  which,  is 
vested  in  the  municipality :  and  further  that  the  parties  or 
corporations  whose  conflicting  interests  are  under  discus- 
sion, are  occupying  the  streets  by  license  from  the  munici- 
pality; second,  that  the  public  highways  have  been  dedi- 
cated for  the  purpose  of  public  travel.  A  highway  is  a 
public  road  which  every  citizen  has  a  right  to  use.1 

A  street  railway  company  is  granted  a  franchise  in  fur- 
therance of  the  object  for  which  the  highway  was  dedi- 
cated— viz.,  to  facilitate  public  travel.  This  proposi- 
tion may  be  regarded  as  generally  true.2 

A  necessary  corollary  of  this  principle  is,  that  the  con- 
struction and  operation  of  a  horse  railway  upon  a  street  is 
only  a  new  mode  of  using  it.3 

(1)  Angell  &  Durfee  on  Highways,  3rd  Ed.  Sec.  2;  Stackpole 
v.  Healy,  16  Mass.  33, 1819,  8  Am.  Dec.  121n ;  Davis  v.  Smith,  130 
Mass.  113,  1881;  State  v.  Proctor,  90  Mo.  334. 1886.  2  S.  W.  472; 
Elliott  on  Roads  and  Streets,  3rd  Ed.  Sec.  1. 

(2)  Street  Railway  v.  Cumminsville,  14  Ohio,  546, 1863 ;  Peo- 
ple v.  Kerr,  27  N.  Y.  188,  1863;  Hobart  v.  Milwaukee,  etc.,  27 
Wis.  194,  1870 ;  Hinchman  v.  Paterson  Horse  Railroad,  17  N.  J. 
Gq.  75,  1864;  Briggs  v.  Lewiston  &  Auburn  Horse  R.  R.  Co.  79 
Me.  363;  10  Atl.  Rep.  47,  1887. 

(3)  Central  Pennsylvania  Telephone  &  Supply  Co.  v.  Wilkes- 
Barre  &  Westside  Railway  Co.,  11  Pa.  C.  C.  417;  4  Am.  Elec. 
Cas.,  260, 1892. 


6  CONFLICTING  USES  OF  ELECTRICITY. 

A  change  in  the  method  of  propelling  cars,  as  by  sub- 
stituting electricity  for  horses  is  simply  an  improvement 
in  transportation,  and  imposes  no  more  burden  than  horse 
cars.4 

The  operation  of  electric  cars  by  the  Sprague  and 
Thomson-Houston  systems  is  a  lawful  or  permissible  way 
of  exercising  that  franchise.5 

6a.    Telephone  companies  and  telegraph  companies  a  burden 
upon  the  highway. 

Telephone  and  telegraph  companies  are  in  a  somewhat 
different  position.  They  occupy  the  highways  by  virtue  of 
a  grant  from  the  municipality,  and  the  grant  is  almost  uni- 
versally coupled  with  a  provision  that  the  construction  of 
their  lines  or  exercise  of  their  franchise  shall  not  interfere 
with  public  use  of  the  highway.  It  may  in  fact  be  con- 
sidered as  established  that  the  presence  of  telephone  and 
telegraph  companies  upon  the  streets  is  an  actual  burden 
upon  the  highway,  and  that  they  are  not  there  by  virtue 
of  rights  acquired  under  their  original  dedication.  "The 
telephone  franchise  is  an  indivisible  franchise  and  is  sub- 
ordinate in  all  respects  to  the  rights  of  public  travel."6 

7.    A  telephone  company  is  a  telegraph  company. 

Finally  a  telephone  company  is  a  telegraph  company. 
In  England  the  question  was  settled  as  early  as  1880, 
in  the  case  of  Attorney  General  v.  Edison  Telephone  Com- 

(4)  Mt.  Adams  &  Eden  Park  Incline,  etc.,  Co.  v.  Howard 
Winslow,  3  Ohio  C.  C.  R.  425;  2  Am.  Elec.  Gas.,  262,  1888. 

(5)  Cumberland  Telephone  &  Telegraph  Co.  v.  United  Elec- 
tric Railway  Co.,  42  Fed.  Rep.  273;  12  L.  R.  A.,  544;  3  Am.  Elec. 
Cas.,  408, 1890. 

(6)  Hudson  River  Telephone  Co.  v.  Watervliet  Turnpike  & 
Rwy.  Co.,  135  N.  Y.  393,  1892;  32  N.  E.  148;  17  L.  R.  A.  674; 
4  Am.  Elec.  Cas.  275,  1892. 


LEGAL  POSITION  OF  ELECTRICAL  COMPANIES.  J 

pany  of  London.7  That  case  decided  that  under  the  Tele- 
graph Company  acts  of  1863  and  1869,  the  Edison  Tele- 
phone was  a  telegraph  within  the  meaning  of  those  acts, 
although  the  telephone  was  not  invented  or  contemplated 
in  1869.  It  was  also  settled  that  a  conversation  through  the 
telephone  was  a  "message,"  or  at  all  events,  a  thought  or 
communication  transmitted  by  telegraph  and  therefore  a 
"telegram"  within  the  meaning  of  this  act,  and  that  since 
the  Edison  Telephone  Company  made  a  profit  out  of  the 
rents,  conversations  held  by  subscribers  through  their 
telephones,  were  infringements  of  the  exclusive  privilege 
to  transmit  telegrams  granted  to  the  Postmaster  General 
by  the  act  of  1869,  and  within  the  exception  mentioned  in 
section  5. 

The  same  decision  has  been  reached  in  various  Ameri- 
can jurisdictions.  In  the  case  of  Wisconsin  Telephone 
Company  v.  City  of  Oshkosh,8  it  was  decided  that  tele- 
phone companies,  though  not  specifically  mentioned  in  the 
law  relating  to  telegraph  companies,  might  be  incorpor- 
ated under  that  law.  A  telegraph,  it  has  been  held,  is  a 
term  which  means  and  includes  any  apparatus  or  adjust- 
ment of  instrument  for  transmitting  messages  or  other 
communications  by  means  of  electric  currents  and  sig- 
nals, and  embraces  the  telephone.9.  This  case  adds  to  the 
other  decisions  the  principle  that  telegraphs  and  tele- 
phones are  public  vehicles  of  intelligence,  and  can  make 
no  discrimination  in  the  use  of  them  by  the  public.10 

(7)  Attorney-General  v.  Edison  Telephone  Co.  of  London, 
L.  R.  6  Q.  B.  D.  244,  1880. 

(8)  Wisconsin  Telephone  Co.  v.  City  of  Oshkosh,  62  Wis.  32; 
21  N.  W.  17;  1  Am.  Elec.  Gas.  687,  1884. 

(9)  The  Chesapeake  &  Potomac  Telephone  Company  v.  Bal- 
timore &  Ohio  Telegraph  Company,  66  Md.  399 ;  7  Atl.  Rep.  809, 
1886. 

(10)  The  Chesapeake  and  Potomac  Telephone  Company  v. 


8  CONFLICTING  USES  OF  ELECTRICITY. 

It  seems  to  have  been  settled  also,  that  in  ordinary  acts 
of  assembly,  telephone  companies  have  not  the  right  of 
eminent  domain  over  the  private  lands  of  individual  own- 
ers merely  by  reason  of  the  quasi-public  nature  of  their 
franchises.11  It  was  held  likewise  in  this  case,  following 
the  Supreme  Court  of  the  United  State  in  Richmond  v. 
Southern  Bell  Telephone  Company,12  that  the  telephone 
company  is  a  telegraph  company.  The  express  terms  of 
the  act  of  assembly  under  which  the  last  decision  was 
reached,  was  a  denial  by  the  legislature  of  any  right  on 
the  part  of  telephone  or  telegraph  companies  to  obstruct 
public  travel,  the  words  of  the  statute  being  "the  same 
shall  not  be  so  constructed  as  to  incommode  the  public  use 
of  such  roads,  streets  or  highways,  or  injuriously  inter- 
rupt the  navigation  of  such  waters." 

8.    They  must  not  interfere  with  public  travel. 

The  general  principle  applicable  to  the  position  of  the 
telegraph  and  telephone  companies  with  respect  to  the  use 
of  highways  is  that  laid  down  in  the  case  of  Blanchard 
v.  Western  Union  Telegraph  Company,13  in  which  it  was 
established  that  those  navigating  the  public  navigable 
streams  for  commercial  purposes,  have  the  primary  and 
paramount  right  to  it,  and  every  interference  with  or  ob- 
struction of  the  navigation,  or  hindrance  to  the  free  pas- 
sage of  vessels  is  prima  facie  a  nuisance,  and  under  the 
facts  of  that  case,  it  was  decided  that  telegraph  cables  so 

Baltimore  &  Ohio  Telegraph  Company,  66  Md.  399  j  7  Atl.  Rep. 
809,  1886. 

(11)  Pennsylvania  Telephone  Company  v.  Hoover,  24  Pa. 
Super.  Ct.  96,  1904. 

(12)  Eichmond  v.  Southern  Bell  Telephone  Co.,  174  U.  S. 
761, 1899. 

(13)  Blanchard  v.  Western  Union  Telegraph  Co.,  60  N.  Y. 
510,  1875. 


LEGAL  POSITION  OF  ELECTRICAL  COMPANIES.  9 

laid  or  suspended  in  navigable  waters  as  to  catch  upon 
the  keels  or  to  come  in  contact  with  vessels  navigating  the 
streams,  are  improperly  placed  and  to  be  construed  as  a 
nuisance. 

9.    The  English  doctrine. 

In  England,  however,  it  is  held  that  injuries  done  to 
electric  cables,  telegraph  or  telephone,  by  a  ship's  anchor, 
form  the  basis  of  an  action  for  damages.  In  the  case  of 
the  Clara  Killam,14  it  was  decided  that  the  master  of  a 
ship,  permitting  damage  to  occur  by  the  entanglement  of 
the  ship's  anchor  with  the  electrical  cable  was  guilty  of 
want  of  nautical  skill  and  that  the  ship  might  be  con- 
demned in  damages  and  costs.  In  the  case  of  Submarine 
Telegraph  Company  v.  Dickson,15  the  plaintiffs  owned  a 
telegraph  cable  between  England  and  France.  The  in- 
juries for  which  the  action  in  this  case  was  brought  oc- 
curred more  than  three  miles  from  the  English  coast,  and 
were  caused  by  the  lowering  of  the  anchor.  The  doctrine 
announced  was  that  masters  of  ships  were  presumed  to 
be  aware  of  the  existence  and  situation  of  submarine 
cables,  and  that  the  duty  was  thereby  cast  upon  all 
masters  of  ships  to  manage  their  vessels  so  carefully  and 
skilfully  as  to  avoid  injuring  such  cables. 

It  is  to  be  observed,  that  such  subjects  have  received 
a  much  more  minute  regulation  in  England  than  they 
have  in  the  United  States,  the  respective  rights  and  duties 
of  ship  owners,  telegraph  companies,  street  railway  com- 
panies, &c.,  being  carefully  defined  by  statute.  Compen- 
sation is  given  by  the  Submarine  Telegraph  act  of  1885, 
schedule,  article  i,  to  ship  owners  who  can  prove  that 

(14)  The  Clara  Killam,  39  L.  J.  P.  50. 

(15)  Submarine  Telegraph  Co.  v.  Dickson,  15  C.  B.  (N.  S.) 
[109  E.  C.  L.  Rep.]  759,  1864. 


IO  CONFLICTING  USES  OF  ELECTRICITY. 

they  have  sacrificed  an  anchor  in  order  to  avoid  injury 
to  a  submarine  cable.  It  was  held  in  the  case  of  Agin- 
court  Steamship  Company  v.  Eastern  Extension  Tele- 
graph Company,16  that  this  right  to  compensation  in- 
cluded only  the  actual  value  of  the  anchor,  &c.,  but  did 
not  render  the  telegraph  company  liable  to  pay  the  dam- 
ages resulting  from  such  a  sacrifice. 

Finally  the  decision  has  been  reached  that  the  use  of 
the  highway  for  the  purpose  of  erecting  telegraph  poles, 
is  a  new  and  additional  burden  upon  the  fee  in  the  high- 
way for  which  the  owner  of  the  highway  is  entitled  to 
compensation.17 

From  these  latter  cases,  we  may  derive  the  principle 
that  telephone  companies  are  telegraph  companies;  that 
when  they  make  use  of  highways  they  must  not  interfere 
with  public  travel,  on  streams,  or  on  roads  or  streets.  As 
to  streams,  this  is  not  true  in  England. 

10.    Street  railways  have  no  exclusive  right  to  the  highway. 

As  against  this  we  have  the  counter  principle  that  the 
street  railway  has  not  an  exclusive  right  to  the  highway ; 
that  its  rights,  too,  are  subordinate  to  those  of  the  public 
and  that  in  the  case  of  an  elevated  railroad  at  least,  its 
occupation  of  the  streets  is  also  considered  an  additional 
burden  upon  the  highway.  So  that  we  reach  a  reason- 
able equality,  in  the  standing  of  the  rival  licensees,  with 
some  slight  advantage  in  the  ordinary  street  railway.18 


(16)  Agincourt  Steamship  Co.  v.  Eastern  Extension  Tele- 
graph Co.,  76  L.  J.  (K.  B.)  884,  1907. 

(17)  Board  of  Trade  Telegraph   Company  v.  Barnett,  107 
111.  507;  1  Am.  Elec.  Cas.  565,  1883. 

(18)  Transportation   Co.   v.   Chicago,   99   U.   S.  635,  1878; 
Hinchman  v.  Railroad  Co.,  17  N.  J.  Eq.  77,  1864;  Easton  v. 
Railroad  Co.,  24  N.  J.  Eq.  58,  1873;  Railway  Co.  v.  Heisel,  38 
Mich.  62,  1878;  Davis  v.  Mayor,  14  N.  Y.  506,  1856. 


LEGAL  POSITION  OF  ELECTRICAL  COMPANIES.  II 

It  must  be  understood  that  even  the  street  railway  has 
not  the  exclusive  use  of  any  portion  of  the  street.  It  has 
merely  the  paramount  right  to  use  that  portion  of  the 
street  occupied  by  its  tracks,  but  the  public  has  the  right 
to  use  the  street  including  the  part  occupied  by  the  track.19 

If  then  disputes  arise  between  rival  licensees  of  the 
city  streets,  the  disputing  licensees  are  persons  who  have 
been  permitted  to  use  the  streets  of  the  city  for  an  espec- 
ial purpose  and  they  enjoy  that  right  in  common  with 
other  grantees  of  similar  rights.  These  rights  in  any 
case  are  subordinate  to  those  of  the  public.  The  railway 
company's  use  must  not  conflict  with  that  of  public  travel. 

11.    The  railway  a  dominant  franchise. 

None  the  less,  being  in  furtherance  of  the  purpose  for 
which  the  highway  was  dedicated,  the  railway  franchise 
is  the  highest  that  can  be  granted  for  the  use  of  the  streets. 
Except  as  to  the  priority  of  the  railway  franchise  all  other 
franchises,  such  as  that  of  the  telephone,  are  in  a  similar 
position — their  right  is  subordinate  to  that  of  public 
travel.  Consequently,  it  would  seem  if  the  cables  of  the 
telephone  company  were  so  close  to  the  surface  of  the 
street  that  the  passage  of  trucks  or  other  vehicles  above 
them  rendered  the  cables  useless,  the  company's  only  rem- 
edy would  be  to  place  the  cables  beyond  the  reach  of  dis- 
turbance.20 


(19)  Goldrick  v.  Union  Railroad  Co.,  20  R.  I.  128;  37  Atl. 
Rep.  635,  1897. 

(20)  Wisconsin  Telephone  Co.  v.  Eau  Claire  Street  R.  Co.,  3 
Am.  Elec.  Gas.  383,  1890. 


CHAPTER  II. 

CONFLICTS    IN    THE    USE    OF    ELECTRICITY    PRODUCED    BY 
STREET  RAILWAYS. 

12.  The  operating  and  construction  of  a  railway  cannot  be 

enjoined  if  lawful. 

13.  Summary  of  principles. 

14.  The  kind  of  relief  open  to  a  telephone  company. 

15.  The  telephone  apparatus  must  be  efficient. 

\ 

12.    The  operation  and  construction  of  a  railway  cannot  be 
enjoined  if  lawful. 

With  the  relative  rights  of  the  parties  before  us,  let 
us  now  examine  the  facts  of  one  of  the  leading  cases  in 
which  the  question  of  the  liability  of  an  electric  railway 
company  for  damages  to  telephone  apparatus  resulting 
from  the  escape  of  its  electric  current  into  the  earth,  was 
considered.  The  question  was  passed  upon  and  decided 
in  New  York  by  the  Court  of  Appeals,  in  the  case  of  Hud- 
son River  Telephone  Company  v.  Watervliet  Turnpike 
and  Railway  Company.21  In  that  case  the  facts  were 
these : 

The  plaintiff,  a  telephone  company,  brought  an  action 
against  the  railway  company  to  restrain  the  railway  from 
operating  its  system  by  means  of  an  electric  motor,  known 
as  the  single  trolley  method,  in  certain  streets  of  the  city 
of  Albany,  on  the  ground  that  it  would  cause  great  and 
irreparable  injury  to  the  plaintiff's  telephone  system  and 
service.  So  far  as  priority  in  time  was  concerned,  the 
telephone  company  was  incorporated  in  1883,  while  the 

(21)  Hudson  River  Telephone  Company  v.  Watervliet  Turn- 
pike &  Railway  Company,  135  N.  Y.  393;  32  N.  E.  148;  17  L.  R. 
A.  674;  4  Am.  Elec.  Cas.  275,  1892. 

12 


ELECTRICITY  PRODUCED  BY  STREET  RAILWAYS.          13 

defendant  only  secured  the  right  to  operate  its  road  by 
electricity  in  1889,  which  was  six  years  later.  The  de- 
fendant had  originally  been  a  turnpike  company,  which 
was  subsequently  authorized  to  construct  and  maintain 
railroad  tracks  on  its  turnpike  road.  In  1889  the  defend- 
ant was  given  permission  by  the  councils  of  Albany  to 
use  a  single  trolley  system  of  electrical  propulsion,  and 
sometime  prior  to  the  beginning  of  the  action,  had  fitted 
up  its  road  for  operation  by  that  method.  The  injuries 
to  the  plaintiff  were  that  the  powerful  current  of  elec- 
tricity used  by  the  defendant  escaped  in  part,  and  passed 
through  the  earth  and  other  conductors  and  affected  plain- 
tiff's lines,  so  that  its  customers  were  annoyed  with  loud 
noises  and  the  switch-board  was  affected  when  one  of  the 
defendant's  cars  passed  near  any  of  the  plaintiff's  wires. 
In  consequence,  the  use  of  the  plaintiff's  telephones  was 
rendered  difficult  and  unsatisfactory,  and  at  times  impos- 
sible. 

It  was  found,  as  a  matter  of  fact,  that  there  were  two 
ways  in  which  the  interference  of  currents  could  be  pre- 
vented. First.  The  plaintiff  could  prevent  it  by  using  a 
complete  metallic  circuit,  at  great  expense.  Second.  The 
defendant  could  prevent  it  by  substituting  the  double  for 
the  single  trolley  system. 

It  may  be  seen  at  once  that  the  failure  of  the  telephone 
company  in  its  action  might  be  forecast  when  the  rights 
of  the  railway  company  are  analyzed,  for  the  telephone 
company  sued  to  restrain  the  use  of  the  single  trolley  sys- 
tem. The  court  began  its  inquiry  by  a  consideration  of 
the  right  of  the  defendant  to  make  use  of  the  single  trol- 
ley system  of  electrical  propulsion.  It  is  evident  that  once 
it  is  admitted  that  this  is  a  lawful  use  of  the  highway  by 
the  railway  company,  that  the  telephone  company's  right 
to  prevent  the  use  of  this  particular  system  must  fail. 


14  CONFLICTING  USES  OF  ELECTRICITY. 

The  view  taken  by  the  court,  however,  of  the  defend- 
ant's rights  is  the  most  extreme  one  that  can  be  conceived. 
It  is  said,  (Opinion,  page  404),  'The  history  of  plain- 
tiff's franchise  is  instructive  upon  this  point.  It  is  an  in- 
truder in  the  public  streets  and  not  possessed  of  any  prop- 
erty rights  which  a  Court  of  Equity  can  be  invoked  to 
protect,  if  the  canon  of  construction  which  it  insists  upon 
applying  to  the  grant  of  the  defendant's  franchises,  shall 
be  allowed  to  prevail.  It  is  incorporated  under  the  Act 
of  1848,  providing  for  the  formation  of  telegraph  com- 
panies. At  that  time,  and  for  20  years  afterwards,  the 
art  of  telegraph,  as  known  and  practiced,  did  not  include 
the  transmission  of  human  speech  by  means  of  the  tele- 
phone over  wires  strung  upon  poles. 

"It  would  be  a  narrow  and  illiberal  construction  of  the 
statute  to  hold  that  the  defendant  was  irrevocably  bound 
by  the  choice  of  a  motive  power  made  in  1862.  It  then 
selected  the  only  practicable  one,  but  the  authority  to  em- 
ploy others  was  not  thereby  exhausted.  It  was  a  continu- 
ing privilege  and  was  intended  to  be  potential  whenever 
and  as  often  as  the  means  of  public  travel  might  be  im- 
proved or  facilitated  by  its  exercise.  Equally  flexible  was 
the  power  given  to  the  common  council  of  the  city  to  im- 
pose such  reasonable  conditions  upon  the  enjoyment  by  the 
defendant  of  the  franchises  of  a  street  railway  company 
as  in  their  judgment  the  interests  of  the  public  seemed  to 
require.  Their  authority,  in  this  respect,  was  coincident 
in  extent  with  the  company's  right  of  selection.  They 
could  limit  the  municipal  assent  to  a  railroad  operated  in 
a  specified  way,  as  they  did  by  the  ordinance  of  1862, 
and  while  that  remained  unmodified  no  other  method 
could  be  lawfully  used,  and  they  could,  by  a  subsequent 
ordinance,  as  in  1889,  authorize  the  necessary  changes  to 
be  made  in  the  equipment  of  the  streets  for  the  introduc- 


ELECTRICITY  PRODUCED  BY  STREET  RAILWAYS.  15 

tion  of  electricity  as  a  propelling  force.  This  power  is 
fairly  inferable  from  the  original  act,  and  may  also,  per- 
haps, be  deduced  from  the  provisions  of  the  city  charter, 
which  authorizes  them  to  regulate  the  use  of  the  streets 
by  railways." 

This  case  is  clearly  distinguishable  from  that  of  the 
Third  Avenue  Railway  v.  Newton,22  cited  at  length  by 
plaintiff's  counsel.  There  the  railroad  company  had  no 
express  grant  of  legislative  authority  and  the  consent  of 
the  municipality  was  refused.  It  was  attempted  to  over- 
ride the  local  authorities  and  compel  them  by  mandamus 
to  give  their  approval  to  the  opening  and  excavating  of 
the  streets  for  the  purpose  of  substituting  a  subsurface 
mode  of  operation,  when  the  granting  of  the  permission 
plainly  involved  the  exercise  of  judgment  and  discretion. 
It  was  held  that  under  such  circumstances  the  department 
of  public  works  could  not  be  coerced  to  act  favorably 
upon  the  company's  application.  But  the  case  is  not  au- 
thority for  the  broad  proposition,  for  which  the  plaintiff 
contends,  that  where  the  right  to  select  a  motive  power 
is  expressly  given  and  not  limited,  either  as  to  time  or 
kind,  and  a  selection  has  been  made  with  the  approval  of 
the  city  authorities,  the  company  cannot  subsequently 
adopt  a  new  and  better  system  of  propulsion  upon  obtain- 
ing the  municipal  consent  thereto. 

"The  defendant  was  not  subject  to  the  provisions  of 
section  12  of  the  Street  Surface  Railroad  Act  of  1884 
(Ch.  252),  as  amended  by  chapter  531  of  the  laws  of 
1889,  requiring  the  approval  of  the  railroad  commission- 
ers and  the  consent  of  the  owners  of  one-half  in  value  of 
the  property  abutting  upon  the  streets. 

It  had  the  right  to  make  the  change  under  the  act  of 

(22)  Third  Avenue  Railway  v.  Newton,  112  N.  Y.  396;  19 
N.  E.  831,  1889. 


l6  CONFLICTING  USES  OF  ELECTRICITY. 

1862  upon  obtaining  the  consent  of  the  common  council, 
and  hence  it  is  embraced  within  the  saving  clause  con- 
tained in  section  18,  which  declares  that  the  act  of  1884 
shall  not  interfere  with,  repeal,  or  invalidate  any  rights 
theretofore  acquired  under  the  laws  of  the  State  by  any 
horse  railway  company,  or  affect  or  repeal  any  right  of 
an  existing  street  surface  railroad  company  to  construct, 
extend,  operate  and  maintain  its  road  in  accordance  with 
the  terms  and  provisions  of  its  charter  and  the  acts  amen- 
datory thereof.  Inchoate,  as  well  as  perfected  rights  are 
saved  by  such  a  provision.23 

"The  defendant's  authority  to  use  electric  motors  in  the 
propulsion  of  its  cars  in  the  streets  of  Albany  and  to  oper- 
ate them  by  the  single  trolley  system,  cannot,  therefore, 
be  successfully  questioned,  and,  unless  actionable  damage 
has  resulted,  or  will  result,  to  the  plaintiff  therefrom,  its 
complaint  was  properly  dismissed  by  the  trial  court. 

"There  is  no  question  of  prior  equities  involved.  It  is 
a  matter  of  strict  legal  right.  Neither  priority  of  grant 
nor  priority  of  occupation  can  avail  either  party.  The 
plaintiff  has  a  franchise  which  is  entitled  to  protection, 
but  the  prime  difficulty  it  encounters  grows  out  of  its  sub- 
ordinate character.  It  has  been  given  and  accepted  upon 
the  express  conditions  that  it -shall  not  obstruct  or  inter- 
fere with  the  enjoyment  by  the  defendant  of  its  franchise. 
The  plaintiff  is  not  using  the  streets  for  one  of  the  pur- 
poses to  which  they  have  been  dedicated  as  public  high- 
ways, while  the  defendant  is  occupying  them  in  such  a 
manner  as  to  expedite  public  travel  and  promote  the  pub- 
lic use  to  which  they  were  originally  devoted.  The  con- 
dition contained  in  the  plaintiff's  grant  would  have  been 
implied  had  it  not  been  expressly  named. 

(23)  N.  Y.  Cable  Co.  v.  Meyer,  etc.,  104  N.  Y.  1;  10  N.  E. 
332,  1887. 


ELECTRICITY  PRODUCED  BY  STREET  RAILWAYS.  I? 

'The  primary  and  dominant  purpose  of  a  street  is  for 
public  passage,  and  any  appropriation  of  it  by  legislative 
sanction  to  other  objects  must  be  deemed  to  be  in  subor- 
dination to  this  use,  unless  a  contrary  intent  is  clearly 
expressed.  The  inconvenience  or  loss  which  others  may 
suffer  from  the  adoption  of  a  mode  of  locomotion  author- 
ized by  law,  which  is  lawfully  employed,  and  which  does 
not  destroy  or  impair  the  usefulness  of  a  street  as  a  public 
way,  is  not  sufficient  cause  for  a  recovery,  unless  there  is 
some  statute  which  makes  it  actionable.  A  different  rule 
prevails  if  there  has  been  an  encroachment  upon  private 
rights  to  the  extent  of  an  appropriation  of  private  prop- 
erty, and  it  was  upon  this  ground  that  the  decision  in  the 
elevated  railroad  cases  was  placed.24 

"It  was  there  held  that  an  abutting  owner  has  an  ease- 
ment of  light,  air  and  access  in  the  street  in  front  of  his 
premises,  of  which  he  cannot  be  lawfully  deprived  with" 
out  compensation,  by  the  erection  and  use  of  an  elevated 
railway  structure. 

"But  the  plaintiff  has  no  easement  in  the  public  streets. 
It  is  there  by  virtue  of  a  legislative  grant,  revocable  at 
the  pleasure  of  the  power  which  made  it,  constituting, 
while  it  continues,  a  valuable  franchise,  which  is  recog- 
nized as  property  in  the  fullest  sense  of  the  term.25  The 
plaintiff's  title  to  this  property  is,  however,  encumbered 
by  a  condition  which  diminishes  its  value,  and  it  cannot 
rightfully  complain  of  the  burden  which  it  has  voluntar- 
ily assumed.  It  is  a  part  of  its  compact  with  the  State 
that  the  maintenance  of  its  lines  of  communication  shall 
not  prevent  the  adoption  by  the  public  of  any  safe,  con- 


(24)  Story  v.  N.  Y.  E.  R.  R.  Co.,  90  N.  T.  122,  1882;  Lahr  v. 
Met.  E.  R.  R.  Co.,  104  N.  Y.  268;  10  N.  E.  528, 1887. 

(25)  People,  etc.  v.  O'Brien,  111  N.  Y.  1,  1888;  18  N.  E. 
692. 


l8  CONFLICTING  USES  OF  ELECTRICITY. 

venient,  and  expeditious  mode  of  transit."  That  this  is 
not  the  court's  last  word,  however,  is  indicated  in  the 
paragraph  quoted  below: 

"It  seems  to  be  indispensable  to  the  successful  prosecu- 
tion of  the  plaintiff's  business,  that  it  should  make  use  of 
an  exceedingly  weak  and  sensitive  current  of  electricity. 
By  a  law  of  electric  force,  not  clearly  defined  or  under- 
stood, the  transmission  of  a  powerful  current,  such  as  the 
defendant  must  use  to  supply  motion  to  its  cars,  along  a 
line  of  wire  parallel  with  and  in  close  proximity  to  the 
plaintiff's  wires,  induces  upon  the  latter  an  additional  cur- 
rent, which  renders  the  operation  of  the  plaintiff's  tele- 
phones at  all  times  difficult  and  sometimes  impracticable. 
It  is  found  that  this  disturbance  cannot  be  avoided  by  the 
defendant  without  a  complete  change  of  the  system 
adopted,  and  the  use  of  motors  which  are  more  expensive, 
more  dangerous  and  less  useful  and  efficient.  It  is  ob- 
vious, that  to  require  such  change  to  be  made  would  be 
to  grant  to  the  plaintiff,  by  a  decree  of  the  court,  that 
which  the  legislature  has  expressly  and  intentionally  with- 
held. But  the  plaintiff  is  exposed  to  another  danger 
which  deserves  consideration.  Its  system  of  communica- 
tion is  only  partially  established  in  the  public  streets.  Its 
telephones  are  located  upon  the  premises  of  its  subscrib- 
ers and  patrons,  and  at  a  central  exchange,  which  is  upon 
private  property.  Its  instruments  are  connected  by  branch 
wires  with  the  main  wires  suspended  upon  the  poles  in  the 
streets.  To  render  their  respective  plants  available,  both 
parties  must  have  a  return  electric  current,  and  both  use 
the  earth  for  that  purpose.  The  plaintiff  grounds  its  wires 
upon  private  property  and,  in  many  cases,  connects  them 
with  the  gas  and  water  pipes,  and,  in  this  way,  establishes 
and  completes  its  required  circuit. 

"It  is  immaterial  whether  its  wires  are  grounded  upon 


ELECTRICITY  PRODUCED  BY  STREET  RAILWAYS.          1C) 

its  own  property  or  that  of  others,  who  permit  the  plain- 
tiff to  so  use  their  premises.  Its  possession  as  a  licensee 
would  be  lawful  while  the  license  continues.  The  defend- 
ant allows  the  electric  current  used  for  the  movement  of 
its  cars  to  escape  or  discharge,  at  least  in  part,  directly 
from  the  rails  into  the  ground,  from  whence  it  spreads  or 
flows,  by  reason  of  the  conductivity  of  the  earth,  upon 
plaintiff's  grounded  wires,  and  the  most  serious  loss  which 
the  plaintiff  sustains  results  from  this  cause,  which  is 
scientifically  known  as  conduction.  The  defendant  in- 
sists that  it  has  an  equal  right  with  the  plaintiff  to  make 
use  of  this  property,  or  law  of  nature,  in  the  conduct  of 
its  business,  just  as  all  are  entitled  to  the  common  use  of 
the  air  and  the  light  of  the  heavens,  which,  in  a  certain 
sense,  is  undoubtedly  true.  But  the  defendant  does 
something  more.  It  does  not  leave  the  natural  forces  of 
matter  free  to  act  unaffected  by  any  interference  on  its 
part.  It  generates  and  accumulates  electricity  in  large 
and  turbulent  quantities,  and  then  allows  it  to  escape  upon 
the  premises  occupied  by  the  plaintiff  to  its  damage. 

"We  are  not  prepared  to  hold  that  a  person  even  in  the 
prosecution  of  a  lawful  trade  or  business,  upon  his  own 
land,  can  gather  there  by  artificial  means  a  natural  element 
like  electricity  and  discharge  it  in  such  volume  that,  ow- 
ing to  the  conductive  properties  of  the  earth,  it  will  be 
conveyed  upon  the  grounds  of  his  neighbor  with  such 
force  and  to  such  an  extent  as  to  break  up  his  business, 
or  impair  the  value  of  his  property,  and  not  be  held 
responsible  for  the  resulting  injury.  The  possibilities  of 
the  manifold  industrial  and  commercial  uses  to  which 
electricity  may  eventually  be  adapted  and  which  are  even 
now  foreshadowed  by  the  achievements  of  science,  are  so 
great  as  to  lead  us  to  hesitate  before  declaring  an  exemp- 
tion from  liability  in  such  a  case.  It  is  difficult  to  see  how 


2O  CONFLICTING  USES  OF  ELECTRICITY. 

responsibility  is  diminished  or  avoided,  because  the  actor 
is  aided  in  the  accomplishment  of  the  result  by  a  natural 
law.  It  is  not  the  operation  of  the  law  to  which  the  plain- 
tiff objects,  but  the  projection  upon  its  premises  by  un- 
natural and  artificial  causes  of  an  electric  current  in  such 
a  manner  and  with  such  intensity  as  to  materially  injure 
its  property.  It  cannot  be  questioned  that  one  has  the 
right  to  accumulate  water  upon  his  own  real  property 
and  use  it  for  a  motive  power ;  but  he  cannot  discharge  it 
there  in  such  quantities  that,  by  the  action  of  physical 
forces,  it  will  inundate  his  neighbor's  lands  and  destroy 
his  property,  and  shield  himself  from  liability  by  the  plea 
that  it  was  not  his  act,  but  an  inexorable  law  of  nature 
that  caused  the  damage.  Except  where  the  franchise 
is  to  be  exercised  for  the  benefit  of  the  public  the  corpor- 
ate character  of  the  aggressor  can  make  no  difference. 
The  legislative  authority  is  required  to  enable  it  to  do 
business  in  its  corporate  form,  but  such  authority  carries 
with  it  no  lawful  right  to  do  an  act  which  would  be  a 
trespass,  if  done  by  a  private  person  conducting  a  like 
business.  If  either  collects  for  pleasure  or  profit  the  sub- 
tle and  imperceptible  electric  fluid,  there  would  seem  to 
be  no  great  hardship  in  imposing  upon  it,  or  him,  the  same 
duty  which  is  exacted  of  the  owner  of  the  accumulated 
water  power;  that  of  providing  an  artificial  conduit  for 
the  artificial  product,  if  necessary  to  prevent  injury  to 
others. 

"But  the  record  before  us  does  not  require  a  determina- 
tion of  the  question  in  this  form.  The  use  which  the 
plaintiff  is  making  of  its  grounded  wires,  is  a  part  of  its 
system  of  telephonic  communication  through  the  public 
streets,  and  a  necessary  component  of  the  service  it  main- 
tains there  under  the  permission  of  the  State  and  is  sub- 
ject to  the  condition  that  it  shall  not  incommode  the  use  of 


ELECTRICITY  PRODUCED  BY  STREET  RAILWAYS.  21 

the  streets  by  the  public.  It  is  one  indivisible  franchise 
and  is  in  its  entirety  subservient  to  the  lawful  uses  which 
may  be  made  of  these  thoroughfares  for  public  travel.  In 
this  respect  no  distinction  can  be  made  between  the  in- 
juries resulting  from  induction  and  conduction." 

13.  Summary  of  principles. 

Summarizing  the  results  of  these  cases,  and  in  particu- 
lar the  case  last  examined,  this  much  may  be  accepted  as 
established  in  legal  controversies  of  this  sort.  The  at- 
tempt to  enjoin  the  construction  and  operation  of  a  street 
railway,  because  of  any  inconvenience  to  other  franchise 
holders  produced  by  its  mere  operation,  is  hopeless.  Nor 
can  the  holder  of  another  franchise,  such  as  the  telephone, 
hope  to  recover  the  cost  of  remedying  defective  apparatus, 
and  any  telephone  apparatus  capable  of  being  disturbed 
to  any  marked  extent  by  induction  must  be  classified  as 
defective,  so  long  as  there  exist  insulating  or  isolating 
devices,  such  as  the  complete  metallic  circuit,  or  the  non- 
inductive  circuit,  that  would  protect  the  telephone  or  tele- 
graph lines.  This  much  may  be  taken  as  settled.  The 
operation  of  the  railway  cannot  be  enjoined  in  such  cases, 
nor  can  the  railway  be  compelled  to  change  from  a  single 
to  a  double  trolley  system. 

14.  The  kind  of  relief  open  to  a  telephone  company. 

Inasmuch  as  the  kind  of  relief  sought  is  important,  let 
us  examine  in  full  the  bill  filed  in  the  case  of  the  Railway 
Company  against  the  Telegraph  Association.26  The  peti- 
tion filed  in  that  case  was  as  follows : 

"The  plaintiff  says  that  it  is  an  association  incorporated 
under  the  laws  of  Ohio,  for  the  purpose  of  constructing, 

(26)  Railway  Co.  v.  Telegraph  Association,  48  Ohio,  390, 
1891;  27  N.  E.  890. 


22  CONFLICTING  USES  OF  ELECTRICITY. 

maintaining  and  operating  telegraph  and  telephone  lines 
in  said  State  and  elsewhere,  and  has  its  principal  office 
and  business  in  the  city  of  Cincinnati,  where  it  is  now  and 
has  for  more  than  ten  years  past  been  conducting  a  tele- 
phone business,  by  means  of  wires  stretched  upon  poles 
lawfully  placed  and  maintained  in  the  streets  pursuant  to 
the  statutes  made  for  that  purpose,  and  under  the  direc- 
tion of  the  authorities  of  said  city. 

"Said  wires  are  connected  with  and  terminate  at  the 
several  'exchanges'  owned  by  the  plaintiff  in  said  city  and 
vicinity. 

"At  the  'exchange'  the  wires  are  so  arranged,  by  means 
of  a  device  for  that  purpose,  that  any  one  of  them  can  be 
immediately  connected  with  any  other.  Each  wire  also 
terminates  in  the  office,  store,  room,  place  of  business  or 
residence  of  some  person,  firm  or  company,  a  subscriber 
to  this  association  paying  an  annual  sum  for  the  use  of 
the  telephone  and  the  service  in  connection  therewith. 
Each  of  such  subscribers  can,  by  the  use  of  the  telephone 
and  other  patented  inventions  of  which  the  plaintiff  is  the 
sole  licensee  in  the  territory  where  it  transacts  business, 
immediately  communicate  with  and  speak  to  an  operator 
in  an  'exchange/  and  said  operator  can,  and  if  requested, 
does,  forthwith  connect  such  subscriber's  wire  with  that 
of  any  other  subscriber  named,  so  that  the  two  may  con- 
verse directly  with  each  other. 

"Such  communication  is  effected  by  means  of  a  slight 
but  continuous  electric  current  passing  over  the  wire  from 
the  speaker  to  the  hearer,  and  unless  interrupted  or  inter- 
fered with  is  easily  and  quickly  made. 

"Plaintiff  says  that  many  thousand  such  communica- 
tions are  daily  made  between  persons  in  all  parts  of  said 
city  and  in  the  county  of  Hamilton,  that  all  the  principal 
offices,  business  houses,  newspaper  offices;  hotels,  and 


ELECTRICITY  PRODUCED  BY  STREET  RAILWAYS.          23 

other  places  of  resort,  and  many  residences  in  said  county 
are  thus  connected  together  and  brought  into  communi- 
cation. 

"Plaintiff  says  that  it  has  over  three  thousand  such  sub- 
scribers in  the  city  and  vicinity,  and  that  its  lines  also  ex- 
tend to  and  connect  all  the  villages  for  many  miles  around 
said  city,  and  hundreds  of  communications  are  daily  made 
over  the  last  named  lines,  for  each  of  which  a  small  sum 
is  paid  plaintiff  by  the  person  sending  the  same ;  that  the 
whole  constitutes  a  business  of  value  to  the  plaintiff  and 
important  to  the  public. 

"Plaintiff  further  says,  that  the  defendant  is  a  corpor- 
ation under  the  laws  of  Ohio,  engaged  in  the  maintenance 
and  operation  of  an  inclined  plane  railway  in  the  city  of 
Cincinnati,  and  claims  to  own,  and  is  now  in  possession 
of,  the  street  railway  tracks  of  what  is  generally  known 
as  the  Mt.  Auburn  Street  Railway,  which,  beginning  at 
the  corner  of  Fifth  and  Walnut  streets,  in  said  city,  ex- 
tends thence,  by  single  track,  on  Fifth  to  Main  street, 
thence  on  Main,  by  single  track,  to  Court  street,  thence 
on  Main,  by  double  track,  to  Mulberry  street,  where  it 
connects  with  said  inclined  plane  railway,  also  extending 
from  the  north  end  of  said  inclined  plane  railway,  by  dou- 
ble track  on  Locust  and  Mason  streets,  Auburn  avenue 
and  Vine  street,  to  the  Carthage  turnpike  and  the  Zoo- 
logical Garden ;  also  on  Court  street,  by  single  track,  from 
Main  to  Walnut  street,  and  on  Walnut  street,  by  single 
track,  to  Fifth  street  to  place  of  beginning. 

"But  plaintiff  says,  that  the  said  tracks  were  originally 
constructed  by  the  parties  through  whom  defendant 
claims,  under  alleged  grants  from  the  city  of  Cincinnati, 
which  provided  that  'No  motive  power  except  horses  or 
mules  shall  be  used  on  said  tracks/  and  the  same  have 
never  been  altered  or  amended  in  that  respect,  and  the  de- 
fendant has  never  acquired  from  the  State  of  Ohio,  or  the 


24  CONFLICTING  USES  OF  ELECTRICITY. 

city  of  Cincinnati,  any  right  to  erect  and  maintain  poles  or 
wires  in  the  streets  aforesaid,  or  to  use  electricity  as  a  mo- 
tive power  for  its  cars. 

"Plaintiff  further  says,  that  since  the  defendant  came 
into  possession  of  said  street  railway,  it  has,  within  six 
months  last  past,  and  without  lawful  authority  so  to  do, 
caused  a  line  of  iron  poles  to  be  erected  on  each  side  of  all 
streets  where  said  tracks  are  situated  as  aforesaid,  and 
placed  upon  the  said  poles  large  wires  which  it  keeps  con- 
stantly charged  with  powerful  currents  of  electricity,  gen- 
erated by  large  steam  engines  and  dynamos  owned  and 
operated  by  defendant  for  that  purpose,  by  means  whereof 
the  cars  upon  all  parts  of  the  track  aforesaid  are  run  and 
operated  from  six  o'clock  in  the  morning  until  twelve 
o'clock  at  night  of  each  and  every  day. 

"Plaintiff  further  says  that  the  defendant  claims  to  have 
secured  authority  from  the  commissioners  of  Hamilton 
county  to  extend  tracks  along  and  upon  the  Carthage 
turnpike  to  be  operated  by  electricity,  as  aforesaid  from 
the  existing  tracks  to  the  village  of  Carthage,  and  will 
place  thereon  poles  and  wires,  and  unless  restrained  by 
the  order  of  this  court  will  proceed  to  run  and  operate 
street  cars  thereon  in  the  same  manner  that  it  is  now  run- 
ning and  operating  them  upon  existing  tracks. 

"Plaintiff  further  says,  that  ever  since  defendant  com- 
menced the  operation  of  its  cars  by  electricity,  it  has 
caused,  and  is  still  causing  great  damage  and  injury  to 
plaintiff,  by  creating  electric  currents  and  noise  upon  plain- 
tiff's telephone  wires,  many  of  which  are  and  have  been 
for  a  period  long  prior  to  the  use  of  electricity  by  defend- 
ant located  upon  each  and  all  the  streets  aforesaid,  and 
upon  the  Carthage  turnpike.  By  reason  of  the  proximity 
of  the  defendant's  poles  and  wires  to  those  of  plaintiff, 
and  of  the  powerful  currents  used  by  defendant,  together 


ELECTRICITY  PRODUCED  BY  STREET  RAILWAYS.          2$ 

with  its  mode  of  use  and  manner  of  construction,  currents 
of  electricity  are  transmitted  to,  or  induced  upon,  the 
wires  of  plaintiff  such  as  to  render  them  useless  for  tele- 
phonic purposes. 

"The  noises  produced  by  defendant's  operations  are 
loud  and  continuous,  so  as  to  prevent  communication  by 
telephone,  and  the  connection  of  many  of  plaintiff's  sub- 
scribers with  the  exchanges  and  with  each  other,  has  been 
thereby  interrupted  and  broken  up,  and  some  of  said  sub- 
scribers have  ordered  their  telephones  removed  and  can- 
celed subscriptions,  while  others  have  only  been  restrained 
from  so  doing  by  the  representations  of  the  plaintiff's  offi- 
cers that  steps  would  be  taken  to  induce  or  compel  defend- 
ant to  remedy  the  evil. 

"Plaintiff  has  received,  and  is  receiving  a  multitude  of 
complaints  from  subscribers  whose  lines  are  affected  by 
defendant's  operation,  and  numerous  notices  that  unless 
the  difficulty  is  remedied  the  telephones  of  the  complain- 
ing subscribers  must  be  removed. 

"Plaintiff  further  says,  that  as  soon  as  the  defendant 
began  the  operation  of  cars  by  electricity,  and  the  conse- 
quent injury  to  its,  plaintiff's,  plant  and  business,  defend- 
ant was  notified  thereof  and  requested  to  remedy  the  same, 
and  has  since  been  repeatedly  urged  to  do  so,  but  up  to  the 
present  time  has  failed  and  refused  to  apply  or  attempt  to 
apply  any  remedy,  or  take  any  steps  to  prevent  the  injury 
to  plaintiff  aforesaid,  which  plaintiff  is  informed  and  be- 
lieves can  be  done  by  defendant  without  any  great  expen- 
diture of  money,  and  without  giving  up  the  use  of  elec- 
tricity as  a  motive  power  for  its  cars. 

"Plaintiff  asserts  that  great  injury  has  been  caused, 
and  great  and  irreparable  injury  will  be  caused  to  it,  by 
the  continued  operation  of  cars  by  defendant,  as  it  is  now, 
and  has  been  heretofore,  operating  the  same. 


26  CONFLICTING  USES  OF  ELECTRICITY. 

"The  plaintiff's  lines  and  telephones  in  the  vicinity  of 
said  street  railway  will  be  rendered  useless,  the  revenue 
received  from  the  subscribers  thereof  cut  off,  and  the 
business  of  the  company  greatly  reduced. 

"Wherefore  the  plaintiff  prays  that  defendant  be  tem- 
porarily enjoined  from  constructing  and  operating  an  elec- 
tric railway  on  the  Carthage  turnpike,  of  the  sort  that  it 
is  now  using,  or  of  any  sort  that  will  interfere  with,  or 
injure,  plaintiff's  lines  or  business.  That,  on  final  hear- 
ing, said  injunction  be  made  perpetual,  and  the  defend- 
ant further  restrained  from  operating  any  of  its  cars  by 
means  of  electricity,  in  the  manner  it  is  now  operating 
the  same,  or  in  any  manner  that  may  interfere  with,  or 
injure,  plaintiff's  business. 

"That  the  damages  already  suffered  by  the  plaintiff  be 
assessed  and  ordered  paid  by  the  defendant,  and  for  such 
other  and  further  relief  as  the  nature  of  the  case,  and 
equity,  may  require." 

15.    The  telephone  apparatus  must  be  efficient. 

It  will  be  seen  that  in  this  case  the  relief  sought  was 
in  a  sense  similar  to  that  prayed  for  in  the  Watervleit 
case,  because  the  defendant  had  been  making  use  of  the 
single  trolley  system.  There  is  this  fact  to  be  noted,  how- 
ever. The  defendant  in  its  answer  alleged  that  the  tele- 
phone company  could  obtain  complete  protection  by  mak- 
ing use  of  the  McCluer  device,  or  the  complete  metallic 
circuit  which  has  superseded  the  McCluer  device,  which 
would  increase  the  efficiency  of  the  telephone  service. 

The  court  consequently  decided  that  if  the  operation  of 
the  street  railway  by  electricity  as  a  motive  power  tends 
to  disturb  the  working  of  the  telephone  system,  the  rem- 
edy of  the  telephone  company  will  be  to  readjust  its  meth- 


ELECTRICITY  PRODUCED  BY  STREET  RAILWAYS.          27 

ods  to  meet  the  condition  created  by  the  introduction  of 
electro  motive  power  upon  the  street  railway.27 

The  relief  asked  in  this  case,  however,  was  reasonable, 
and  as  will  be  seen  later,  it  has  in  certain  cases,  been 
granted. 

In  connection  with  this  fact,  it  may  be  taken  as  prac- 
tically an  established  principle  of  law  in  its  present  state 
of  development  that  under  all  similar  conditions  the  Mc- 
Cluer  device  or  the  complete  metallic  circuit  must  be  re- 
garded as  a  necessary  part  of  a  properly  equipped  tele- 
phone apparatus,  and  therefore,  a  telephone  company 
which  has  not  taken  every  possible  means  to  render  its 
position  impregnable,  such  as  the  use  of  the  McCluer  de- 
vice or  the  complete  metallic  circuit  will  have  no  standing 
to  enjoin  the  operation  of  a  street  railway,  provided,  of 
course,  this  operation  is  lawful.  Otherwise  the  principle 
that  telegraph  companies  occupy  a  secondary  and  subor- 
dinate position  upon  city  streets  is  established  by  decis- 
ions in  practically  all  of  the  States.28 

(27)  Railway  Co.  v.  Telegraph  Assn.,  48  Ohio,  390;  27  N, 
E.  890;  12  L.  R.  A.  534,  1891. 

(28)  Smith  v.  Tel.  Co.,  2  Ohio,  C.  C.  R.  259, 1887;  Mt.  Adams 
&  Eden  Park  Inclined  Rwy.  v.  Winslow  et  al.,  3  Ohio  C.  Ct. 
Rep.  425;  2  Am.  Elec.  Cas.  262,  1888;  Blanchard  v.  The  West- 
ern Union  Telegraph  Co.,  60  N.  Y.  510;  1  Am.  Elec.  Cas.  176, 
1875;  Board  of  Trade  Tel.  Co.  v.  Barnett,  107  Ills.  507;  1  Am. 
Elec.  Cas.  565,  1883;  Willis  v.  Erie  T.  &  T.  Co.,  34  N.  W,  337, 
1887. 


CHAPTER  III. 

AGAINST  WHAT,  RELIEF  MAY  BE  GRANTED. 

16.  A  railway  company  not  protected  in  aggression. 

17.  Acts  constituting  a  nuisance  may  be  restrained. 

18.  Principles  established  in  the  case  of  Hudson,  etc.,  v.  Wat- 

ervliet  Turnpike  Company. 

19.  The  principles  sound  in  view  of  the  relief  sought. 

20.  Franchise  holders  may  not  encroach  upon  private  property. 

21.  They  must  use  the  most  efficient  means  at  their  command. 

22.  What  are  efficient  means? 

23.  No  exclusive  right  to  use  the  earth  as  a  return  circuit. 

24.  Interference  with  submarine  cables. 

25.  Defective  construction  of  a  railway  must  be  remedied. 

16.  A  railway  company  not  protected  in  aggression. 

This,  however,  does  not  mean  that  the  railway  com- 
pany is  ever  protected  in  aggression;  nor  has  the  ques- 
tion of  the  relative  rights  of  the  parties  been  determined 
where  both  are  using  the  most  efficient  known  devices, 
and  the  railway  is  the  aggressor.  Another  question  that 
has  not  been  considered  apparently  in  relation  to  these  de- 
cisions is  the  fact  that  steam  roads  and  the  like  have  been 
restrained  from  operation  on  the  ground  that  the  dis- 
charge of  soot,  smoke,  cinders,  etc.,  was  a  nuisance  for 
which  increased  facility  of  travel  did  not  compensate. 

17.  Acts  constituting  a  nuisance  may  be  restrained. 

There  are  reactions  in  the  law  against  the  ancient  prin- 
ciple that  acts  done  under  legislative  sanction  cannot  be 
restrained,  even  where  they  amount  to  a  nuisance.  Thus 
in  the  case  of  Cogswell  v.  The  New  York,  New  Haven  & 
Hartford  Railway  Company,29  it  was  questioned  whether 

(29)  Cogswell  v.  The  New  York,  New  Haven  &  Hartford 
Railway  Company,  103  N.  Y.  10;  8  N.  E.  537,  1886. 

28 


AGAINST  WHAT,  RELIEF  MAY  BE  GRANTED.  29 

the  legislature  can  authorize  a  railroad  corporation  to 
maintain  an  engine  house  under  circumstances,  which,  if 
maintained  by  an  individual  would,  by  the  common  law, 
constitute  a  nuisance  to  private  property  without  provid- 
ing compensation.  And  the  erection  of  the  engine  house 
of  an  elevated  railroad  was  restrained  in  that  case  as  be- 
ing a  nuisance,  the  direct  offense  being  the  discharge  of 
soot,  cinders  and  the  like.  This  is  a  contradiction  of  the 
doctrine  of  cases  like  Rhodes  v.  Dunbar,30  in  which  such 
nuisances  have  been  held  to  be  the  necessary  accompani- 
ment of  civilization  and  city  life.  This  seems  to  be  the 
rational  course  for  the  law  to  take.  The  principle  that 
progress  must  be  accompanied  by  an  invasion  of  lesser 
rights  for  the  general  good,  is  a  utilitarian  precept  that 
has  always  rested  upon  a  doubtful  foundation,  and  renders 
him  who  asserts  it  liable  to  become  the  prey  of  some  later 
and  stronger  interest  who  can  make  an  effective  appeal 
to  the  same  principle. 

18.    Principles  established  in  the  case  of  Hudson,  etc.  v.  Wat- 
ervliet  Turnpike  Co. 

The  referee  appointed  to  try  the  Watervliet  case,  found, 

1.  That  interference  of  currents  could  be  prevented 
by  the  telephone  company,  by  using  a  complete  metallic 
circuit,  which  would  entail  great  expense  and  interference 
with  the  business. 

2.  Interference  could  be  prevented  by  the   railway 
company  by  substituting  the  double  for  the  single  trolley 
system,  or  by  using  the  storage  battery  system,  which 
would  entail  less  expense  than  the  method  first  named. 

The  court  as  has  been  seen,  refused  to  place  any  re- 
strictions upon  the  use  by  the  railway  company  of  its 
franchises ;  a  decision  practically  that  whatever  change  of 

(30)     Ehodes  v.  Dunbar,  57  Pa.  274,  1868. 


3O  CONFLICTING  USES  OF  ELECTRICITY. 

apparatus  was  necessary  to  eliminate  the  inconvenience 
resulting  from  the  operation  of  the  railway  must  be  made 
by  the  telephone  company.  This,  in  subsequent  cases  has 
been  modified  to  this  extent.  If  the  injury  caused  by  the 
operation  of  an  electric  railway  is  sufficiently  great  to  pro- 
duce a  nuisance,  while  the  court  wlill  not  place 
any  restrictions  upon  the  use  of  the  franchise, 
and  will  not  dictate  to  the  holder  of  the  fran- 
chise the  steps  it  must  take  to  remedy  the  condition, 
it  will  nevertheless  compel  the  offending  corporation  to 
take  such  steps  as  are  necessary  to  abate  the  nuisance. 
This  is  the  attitude  adopted  by  the  courts  where  the  in- 
jury is  due  to  electrolysis,  which  will  be  discussed  later. 

In  reaching  its  conclusion  the  court,  in  the  Watervliet 
case,  used  this  reasoning: 

1.  A  person  aggrieved  by  the  exercise  of  a  franchise 
for  the  public  benefit  may  be  without  remedy  if  the  damage 
sustained  be  the  result  of  the  proper  exercise  of  the  fran- 
chise. 

2.  The  use  of  electricity  as  a  motive  power  for  cars  is 
a  proper  exercise  of  a  railway  franchise. 

3.  Priority  of  grant  to  the  railway  or  to  the  telephone 
company  is  of  no  importance  to  either  side  of  the  contro- 
versy. 

4.  The  franchise  of  the  telephone  company  is  subor- 
dinate to  that  of  the  railway  company. 

5.  The  inconvenience  or  loss  which  others  may  suffer 
from  the  adoption  of  a  mode  of  locomotion  authorized 
by  law  and  skillfully  applied,  is  not  actionable. 

6.  A    telephone   company   has   no   easement   in   the 
streets,  but  simply  a  franchise  subject  to  the  condition  that 
it  shall  not  prevent  the  adoption  by  the  public  of  any  safe, 
convenient  and  expeditious  mode  of  transit. 


AGAINST  WHAT,  RELIEF  MAY  BE  GRANTED.  3! 

7.     The  burden  of  changing  the  system  if  any  be  need- 
ed, is  upon  the  telephone  company. 

19.  The  principles  sound  in  view  of  the  relief  sought. 
Admitting  that  the  relations  of  the  parties  are  those 

above  stated,  it  seems  difficult  to  reach  any  other  conclu- 
sion. A  franchise  does  not  give  the  holder  of  it  any  ease- 
ment in  the  streets  and  while  it  is  property,  it  is  property 
subject  to  certain  conditions  that  not  only  hedge  its  ex- 
istence, but  may  even  destroy  it. 

20.  Franchise  holders  may  not  encroach  upon  private  property. 
While  the  courts  have  gone  very  far  in  granting  im- 
munity to  holders  of  franchises  for  injury  resulting  from 
their  operation,  it  is  generally  conceded  that  there  must 
be  no  direct  encroachment  upon  private  property.     In  the 
case  of  Transportation  Company  v.  Chicago,31  the  de- 
cision was  reached  that  a  thing  authorized  by  the  law  can- 
not be  a  nuisance  such  as  to  give  a  common  law  remedy. 
The  principle  involved  is  an  important  one,  since  it  closes 
the  avenue  to  the  so  frequently  invoked  fourteenth  amend- 
ment to  the  Constitution  of  the  United  States,  so  that  a 
telephone  or  other  electric  company  cannot  claim  that  its 
property  has  been  taken  without  due  process  of  law  if  its 
currents  of  electricity  have  been  interfered  with.     The 
doctrine  in  this  particular  case  agrees  with  the  English 
viewpoint.     Acts  done  in  the  proper  exercise  of  govern- 
mental powers,  and  not  directly  encroaching  upon  private 
property,  although  their  consequence  may  impair  its  use, 
are  not  a  taking  within  the  meaning  of  the  Constitutional 
provision,  which  forbids  the  taking  of  such  property  for 
public  use  without  just  compensation  therefor.    The  prin- 
ciple established  by  this  case  and  by  decisions  practically 

(31)     Transportation  Company  v.  Chicago,  99  U.  S.  635,  1878. 


32  CONFLICTING  USES  OF  ELECTRICITY. 

uniform  throughout  the  United  States,  is  that  work 
which  is  authorized  by  law  cannot  be  a  nuisance.32 

It  is  clear,  therefore,  that  in  order  for  injuries  occa- 
sioned by  the  exercise  of  a  franchise  to  justify  an  injunc- 
tion there  must  either  be  an  improper  use  of  the  franchise 
or  some  abuse  of  the  power  granted  by  the  legislature. 
If  the  company  constructs  its  road  in  accordance  with 
proper  methods,  within  the  powers  granted,  it  seems  that 
in  the  absence  of  direct  aggression  the  law  affords  no 
remedy.  The  sole  requisites  of  the  immunity  of  the  per- 
son exercising  the  franchise  are  that  the  work  be  exe- 
cuted in  an  authorized  manner  and  in  an  authorized 
place.33 

21.  They  must  use  the  most  efficient  means  at  their  command. 
One  necessary  premise  of  this  conclusion  is,  however, 

that  both  parties  are  using  the  most  efficient  means  at 
their  command,  in  the  exercise  of  their  respective  fran- 
chises. If  it  is  at  all  possible,  it  would  seem  that  both 
parties  are  bound  to  construct  their  plant  in  such  a  man- 
ner as  not  to  impair  the  exercise  of  other  franchise  hold- 
ers. If  the  telephone  apparatus  is  so  delicately  con- 
structed that  slight  disturbances  will  impair  its  usefulness, 
then  the  remedy  lies  at  the  doors  of  the  telephone  com- 
pany. It  must  adopt  means  to  protect  its  apparatus  from 
injury.34 

22.  What  are  efficient  means? 

The  necessary  conclusions  from  the  cases  thus  far  ex- 

(32)  Hinchman  v.  The  Paterson  Horse  Railway  Company,  17 
N.  J.  Equity  75,  1864. 

(33)  Easton  v.  N.  Y.  &  Long  Branch  Railway  Company,  24 
N.  J.  Equity  49,  1873. 

(34)  Eastern  &  South  African  Telegraph  Co.  v.  Cape  Town 
Tramways  Companies,  L.  R.  App.  Cas.  (1902)  381. 


AGAINST  WHAT,  RELIEF  MAY  BE  GRANTED.  33 

amined  seem  to  be  ( i )  That  as  to  all  new  telephone  or 
other  electric  franchises,  the  use  of  a  metallic  circuit  to 
protect  the  lines  from  interference  by  trolley  or  other  high 
voltages  of  electricity,  is  a  necessary  part  of  a  properly 
equipped  apparatus.  (2)  That  an  electric  railway  using 
the  ordinary  single  trolley  system,  now  in  general  use,  is 
making  use  of  a  properly  equipped  apparatus. 

23.    No  exclusive  right  to  use  the  earth  as  a  return  circuit. 

The  solution  of  the  problem  has  been  attempted  on  a 
different  ground,  viz. — That  the  company  first  gaining 
the  right  to  use  the  earth  as  a  return  circuit,  thereby  neces- 
sarily acquires  the  power  to  inhibit  such  a  use  of  the  earth 
to  all  subsequent  licensees  of  the  street.  A  telephone 
company  filed  a  bill  in  equity  to  enjoin  the  use  of  electric- 
ity by  the  street  railways  of  Nashville  under  any  system 
which  makes  use  of  the  earth  for  its  return  circuit.  The 
facts  upon  which  the  right  to  maintain  such  a  contention 
was  based,  are  these.  The  telephone  company  was  or- 
ganized and  given  a  franchise  in  the  streets  in  Nashville, 
in  1879,  about  eight  years  prior  to  the  use  of  electricity 
by  the  street  railways  of  Nashville;  it  had  some  fourteen 
hundred  subscribers;  its  service  was  rendered  inefficient 
by  the  operation  of  the  trolley  cars,  by  means  of  the 
Sprague  system,  in  that  by  conduction  strong  currents  of 
electricity  entered  into  the  telephone  cables,  and  that  by 
induction,  varying  currents  were  produced  on  the  tele- 
phone wires ;  the  injury  to  the  telephone  service  could  be 
eliminated  by  the  use  of  a  double  trolley  system.  In  re- 
ply, the  railway  company  stated  that  its  cars  were  operated 
by  electricity  and  that  they  transported  15,000  persons 
daily;  that  the  single  trolley  system  was  practically  the 
only  one  that  had  stood  the  test  of  experience;  that  the 
telephone  company  was  not  entitled  to  a  monopoly  of  the 

3 


34  CONFLICTING  USES  OF  ELECTRICITY. 

earth  as  a  return  circuit ;  and  that  the  telephone  company 
could  remove  the  difficulty  either  by  using  a  complete 
metallic  circuit  or  a  device  known  as  the  "McCluer  De- 
vice." The  injunction  was  denied,  the  court  relying  upon 
principles  differing  somewhat  from  those  laid  down  in 
the  case  first  discussed.  It  was  established  as  a  funda- 
mental proposition  first,  that  nothing  which  is  authorized 
by  competent  authority  can  be  treated  as  a  nuisance  per  se. 
Further,  that,  so  far  as  persons  operating  under  legisla- 
tive grants  were  concerned,  something  more  than  mere 
incidental  damage  to  another  must  be  proved — something, 
in  fact,  in  the  nature  of  an  abuse  of  the  franchise — to  en- 
title the  party  injured  to  an  injunction.  The  injunction 
was  refused  for  the  reasons : 

1.  That  the  defendants  are  making  a  lawful  use  of 
the  franchise  conferred  upon  them  by  the  State,  in  a  man- 
ner contemplated  by  the  statute,  and  that  such  act  cannot 
be  considered  as  a  nuisance  in  itself. 

2.  That,  in  the  exercise  of  such  franchise,  no  negli- 
gence has  been  shown,  and  no  wanton  or  unnecessary  dis- 
regard of  the  rights  of  the  complainant. 

3.  That  the  -damages  occasioned  to  the  complainant 
are  not  the  direct  consequences  of  the  construction  of  the 
defendant's  roads,  but  are  incidental  damages  resulting 
from  their  operation,  and  are  not  recoverable. 

4.  The  telephone  has  not  a  monopoly  of  the  use  of  the 
earth  for  its  return  currents.35 

24.    Interference  with  submarine  cables. 

While  the  right  of  a  street  railway  company  to  dis- 
charge electricity  into  the  street  depends,  as  to  the  holder 

(35)  Cumberland  Telephone  &  Telegraph  Co.  v.  United  Elec- 
tric Railway,  42  Fed.  Rep.  273;  12  L.  R.  A.  544;  3  Am.  Elec. 
Cas.  408,  1890. 


AGAINST  WHAT,  RELIEF  MAY  BE  GRANTED.  35 

of  another  franchise  in  the  street,  upon  its  superior  right, 
it  would  seem  difficult  to  extend  the  principle  so  as  to 
permit  the  railway  company  to  interfere  with  the  opera- 
tion of  public  undertakings.    Such  a  conclusion  has  been 
reached,  however.     The  electricity  which  passed  into  the 
earth  from  a  trolley  line  entered  the  submarine  cable 
operated  by  the  Eastern  and  Southern  Africa  Telegraph 
Company,  and  rendered  it  useless  during  the  passing  of 
cars.    It  will  be  seen  that  the  relative  position  of  the  two 
companies  differed  from  those  previously  discussed.    The 
relative  value  of  the  two  franchises  can  scarcely  be  meas- 
ured, since  the  telegraph  cable  was  one  connecting  Europe 
with  Cape  Town,  and  the  relative  value  of  trolley  service 
and  communication  with  the  outside  world  is  somewhat 
difficult  to  estimate,  and  moreover  the  two  companies  do 
not  hold  similar  franchises  nor  franchises  in  the  same 
street.    A  question  of  conflict  of  franchises  therefore  does 
not  arise.     It  is  rather  a  question  of  liability  of  the  rail- 
way company  for  injury  done  to  private  property  by  the 
escape  of  the  dangerous  agent  of  which  it  makes  use. 
And  this  liability  seems  generally  conceded.36    If  change 
in  the  system  of  the  telegraph  company  became  imperative 
the  railway  company  ought  to  bear  the  cost.     But  as  no 
irreparable  injury  appears,  as  the  situation  may  be  reme- 
died by  a  change  of  apparatus,  an  injunction  it  seems 
would  not  lie,  and  the  court  refused  to  grant  it.    It  went 
further,  however,  and  refused  to  award  damages  to  the 
telegraph  company.    The  principle  of  Rylands  v.  Fletcher, 
seems  clearly  to  apply  and  the  court  did  apply  it,  but 
considered  the  present  case  an  exception.    "The  principle 
of  Rylands  v.  Fletcher,"37  it  was  said,  "applies  to  a  pro- 

(36)  Lahr  v.  Met.  E.  R.  R.  Co.,  104  N.  Y.  268;  10  N.  E.  528, 
1887. 

(37)  Rylands  v.  Fletcher,  L.  R.  3  H.  L.  C.  330,  1868. 


36  CONFLICTING  USES  OF  ELECTRICITY. 

prietor  who  stores  electricity  on  his  own  land  if  it  escapes 
therefrom  and  injures  a  person  or  the  ordinary  use  of 
property.  It  does  not  apply  to  the  case  of  injury  done 
to  a  peculiar  trade  apparatus  unnecessarily  so  constructed 
as  to  be  affected  by  minute  currents  of  the  escaping 
force."38 

To  return  for  a  moment  to  the  use  of  the  earth  to  com- 
plete the  circuit,  it  is  clear  that  no  person  can  prevent  an- 
other from  making  such  a  use  of  it.  When  the  discovery 
was  made  in  1838,  that  it  was  practicable  to  use  the  earth 
for  the  return  of  the  electric  current,  an  application  was 
made  for  a  patent  upon  the  discovery,  and  it  was  refused. 
As  a  matter  of  common  knowledge  it  was  open  to  the  use 
of  anyone  who  could  apply  it  to  his  purpose.  But  the  ex- 
pansion of  steam  and  its  capacity  for  doing  work  is  also 
known,  and  yet  the  user  of  it  is  very  nearly  an  insurer  of 
the  safety  of  those  within  range  of  its  destructive  possi- 
bility, since  it  increases  the  degree  of  care  required  of  him. 
The  principle  applied  in  the  case  last  considered,  of  injur- 
ies to  a  submarine  cable  would  seem  to  leave  no  redress 
for  anyone  injured  by  the  escape  of  the  electric  current 
wherever  absolute  negligence  could  not  be  proved.  If  the 
electricity  passing  into  the  earth  from  a  trolley  car  by  con- 
duction entered  the  metal  framework  of  an  office  building, 
which  was  in  danger  of  destruction,  it  would  be  an  answer 
to  say  that  the  building  was  unnecessarily  built  so  as  to 
be  susceptible  to  destruction  by  electricity  and  that  the 
owner  should  remodel  his  building  on  the  reinforced  con- 
crete system  or  on  some  plan  not  involving  the  use  of  sub- 
stances which  electricity  might  attack.  This  does  not 
sound  convincing.  The  true  rule  in  such  cases  must  be 
not  destruction  of  the  franchises  but  placing  the  burden 

(38)  Eastern  &  South  African  Telegraph  Co.  v.  Cape  Town 
Tramways  Companies,  L.  R.  App.  Cas.  (1903)  381. 


AGAINST  WHAT,  RELIEF  MAY  BE  GRANTED.  37 

of  change,  where  the  parties  have  equal  rights,  upon  the 
one  making  it  necessary.  This  point  has  now  become  aca- 
demic by  reason  of  the  decisions  upon  electrolysis. 

25.    Defective  construction  of  railway  must  be  remedied. 

There  is  no  doubt  that  a  railway  company  is  bound  to 
adopt  all  ordinary  and  usual  appliances  and  methods  to 
prevent  contact  between  its  trolley  and  the  feed  wires  of  a 
telephone  company  stretched  along  or  across  the  same 
highway,  and  defective  construction  is  good  ground  for 
restraining  the  operation  of  the  trolley  line.39 

But  if  no  defect  of  construction  appear,  and  the  situa- 
tion require  an  adjustment  of  the  lines  in  such  a  way  as 
to  avoid  conflict  of  the  franchises,  the  adjustment  must 
be  made  by  the  telephone  company,  and  it  must  raise  or 
lower  its  lines  wherever  necessary.  The  courts  have  even 
gone  so  far  as  to  say  that  if  it  should  be  impossible  to 
construct  and  operate  a  telephone  line  and  an  electric  rail- 
way on  the  same  street  at  the  same  time,  it  is  doubtful 
whether  the  telephone  company  has  the  superior  right  to 
the  use  of  the  street,  merely  because  its  use  was  prior  in 
time.40 

This  is  surely  open  to  question.  It  is,  however,  as 
futile  a  question  as  the  old  problem  of  the  immovable 
mass,  struck  by  an  irresistible  force.  The  true  answer 
to  such  a  problem,  beyond  all  question  is,  that  if  the  use 
of  both  franchises  on  the  same  street  be  impossible,  it  is 
the  duty  of  the  invading  railway  company  to  bear  all  ex- 
pense necessary  to  render  both  franchises  possible. 


(39)  Central  Penna.  Telephone  Co.  v.  Wilkes-Barre  &  West 
Side  Railway  Company,  11  Pa.  C.  C.  417;  4  Am.  Elec.  Cas.  260, 
1892. 

(40)  Central  Pa.  Tel.  Co.  v.  Wilkes-Barre,  etc.,  Ky.  Co.,  11 
Pa.  C.  C.  417;  4  Am.  Elec.  Cas.  260,  1892. 


38  CONFLICTING  USES  OF  ELECTRICITY. 

For,  let  us  assume  a  telephone  company,  already  in  ex- 
istence, having  laid  its  lines  on  a  street  into  which  an  elec- 
tric railway  enters.  The  telephone  company  has  its  cables, 
its  apparatus,  its  buildings.  The  railway  company  begins 
operations  and  makes  it  impossible  for  the  telephone  lines 
to  be  operated  no  matter  how  constructed.  Can  it  be  con- 
tended that  the  telephone  company  is  not  a  property 
holder,  whose  property  has  been  taken  without  due  pro- 
cess of  law?  In  such  a  case,  if  the  invading  company 
makes  it  necessary  to  change  the  location  of  the  telephone 
lines,  the  burden  should  be  borne  by  the  invader. 


CHAPTER  IV. 

INJUNCTIONS  AND  OTHER  REMEDIES. 

26.  Invasion  by  a  new  franchise  holder  enjoinable. 

27.  Direct  interference  by  a  railway  may  bs  restrained. 

28.  Railway  may  be  compelled  to  erect  guards. 

29.  Injury  due  to  lawful  operation  distinct  from  aggression. 

30.  Accommodation  of  conflicting  franchises. 

31.  First  franchise  on  given  territory  not  exclusive. 

32.  Ordinances  requiring  guard  wires. 

33.  Principle  of  dominant  use  of  highway.    Application. 

26.    Invasion  by  a  new  franchise  holder  enjoinable. 

Such  a  conclusion  has  been  reached  where  an  electric 
light  company  has  sought  to  place  its  wires  so  close  to 
the  lines  of  a  telegraph  company,  that  the  telegraph  lines 
became  useless. 

The  electric  light  company  had  a  contract  to  supply  the 
city  with  light  while  the  telegraph  company  was  already 
in  the  field.  The  relief  sought  by  the  telegraph  company 
was  extreme,  as  it  attempted  to  exclude  the  electric  light 
company  from  occupying  the  same  side  of  the  street  as 
itself.  The  court  granted  the  relief  only  to  the  extent  of 
preventing  the  electric  light  company  from  placing  its 
wires  so  close  as  to  interfere  with  the  operations  of  the 
telegraph  company  by  induction  or  to  endanger  the  lives 
of  its  linemen,  when  they  might  have  occasion  to  ascend 
the  poles.  We  may  draw  this  conclusion  as  a  principle 
involved  in  similar  cases.  The  right  of  the  company  as- 
sailed is  only  to  protection  against  actual  or  threatened  in- 
jury. It  is  not  entitled  to  hold  its  franchise  to  the  exclu- 
sion of  all  newcomers,  on  proof  merely  of  additional  in- 
convenience in  the  operation  of  its  plant.41 

(41)  Western  Union  Telegraph  Co.  v.  Chaplain  Electric 
Light  Co.,  14  Gin.  Law  Bulletin  327,  1885. 

39 


4O  CONFLICTING  USES  OF  ELECTRICITY. 

In  a  certain  sense,  a  corporation  occupying  a  portion  of 
the  city  streets  with  its  equipment  by  virtue  of  a  license 
or  franchise  from  the  municipality,  is  a  landowner.  Its 
right  of  occupancy  is  a  property  right  that  will  be  as 
much  protected  from  unlawful  invasion  as  any  other  prop- 
erty right.42 

Tihe  telephone  company  having  its  right  invaded  by  a 
street  car  company  is  therefore  to  some  extent  a  land- 
owner whose  property  has  been  injured  by  a  dangerous 
agent  escaping  from  the  property  of  his  neighbor. 

The  street  railway's  right  to  invade  the  telephone  or 
telegraph  franchise  narrows  itself  then,  to  this,  that  the 
telephone  company  cannot  acquire  a  vested  right  to  use 
the  earth  as  a  medium  for  the  return  of  its  current;  or 
in  other  words,  there  is  no  monopoly  in  the  earth ;  but  it 
is  entitled  to  protection  against  unlawful  invasion. 

27.    Direct  interference  by  a  railway  may  be  restrained. 

If  the  railway  company's  trespass  be  direct  interference 
with  the  telephone  company's  service,  the  law  gives  the 
latter  a  remedy.  If  the  wires  touch  the  telephone  wires, 
cross  them,  ground  them  and  prevent  the  subscribers  from 
using  them,  it  is  ground  for  an  injunction. 

The  court  in  this  case,  affirmed  the  general  principle 
that  to  entitle  a  telephone  company  to  enjoin  an  electric 
railway  company  from  operating  a  line,  under  a  legisla- 
tive grant,  on  a  street  occupied  by  the  former,  damages 
in  the  nature  of  an  abuse  of  the  franchise,  and  not  mere 
incidental  damages  must  be  proved.  But  the  real  test, 
as  suggested  by  the  court,  of  what  is  an  abuse  of  the  rail- 
way franchise  is  the  answer  to  the  question,  "Can  the 

(42)  Chicago  v.  Baer,  41  Ills.  306,  1866;  Rich  v.  Chicago, 
152  Ills.,  18;  38  N.  E.  255,  1894;  Lake  St.  Elec.  Railway  Co.  v. 
Chicago,  183  Ills.  75;  55  N.  E.  721,  1899. 


INJUNCTIONS  AND  OTHER  REMEDIES.  4! 

damage  be  avoided  by  a  proper  construction  of  the  rail- 
way line?"  If  the  answer  is  yes,  the  remedy  exists,  and 
the  railway  company  may  be  enjoined.  The  action  of  the 
railway  company  in  such  a  case  is  not  a  lawful  exercise 
of  its  own  franchise,  but  is  a  usurpation  of  the  telephone 
franchise. 

The  facts  of  the  case  under  discussion,  it  is  true,  pre- 
sent an  aggravated  case  of  usurpation.  For,  it  appeared, 
that  the  complainant,  before  filing  his  bill,  went  to  see  the 
general  manager  of  the  railway  company,  and  called  his 
attention  to  the  fact  that  the  railway  company  was  con- 
structing its  poles  and  wires  in  such  a  way  as  to  prevent 
the  telephone  company  from  carrying  on  its  business  and 
that  the  manager  replied  in  emphatic  language  that  the 
railway  company  would  not  correct  the  abuses  complained 
of,  and  notified  the  telephone  company  that  if  it  did  not 
itself  correct  these  troubles,  the  railway  company  would 
tear  up  the  telephone  wires  and  poles. 

The  court  regarded  this  as  proof  of  an  unwarranted 
usurpation  of  right  and  power  by  the  railway  company, 
denying  to  the  telephone  company  anything  like  an  equal 
privilege  to  the  enjoyment  of  the  streets  with  the  defend- 
ant. 

It  may  be  said  in  passing  that  such  injudicious  remarks 
of  officials  of  either  company  stamp  the  act  of  the  com- 
pany at  once  as  arbitrary  and  unmindful  of  the  rights  of 
others,  which  militate  strongly  against  the  offender  in  a 
court  of  equity  where  the  majority  of  these  controversies 
are  tried,  equity  demanding  that  the  parties  seeking  equity 
must  do  equity.43 

28.    Railway  may  be  compelled  to  erect  guards. 

The  apparent  unfairness  that  may  result  from  the  ap- 

(43)  Birmingham  Traction  Co.  v.  Southern  Bell  Telephone 
Co.,  119  Ala.  144;  24  So.  731,  1898. 


42  CONFLICTING  USES  OF  ELECTRICITY. 

plication  of  the  doctrine  that  injury  resulting  from  the 
operation  of  an  electric  franchise  is  damnum  absque  in- 
juria  (not  actionable)  has  called  forth  a  protest  from  the 
Missouri  courts.  That  court  has  declared  expressly  that 
it  did  not  share  the  extreme  views  of  other  courts,  and 
that  it  was  the  duty  of  the  public  and  of  the  individual  to 
prevent  a  nuisance;  the  fact  therefore,  that  the  person  in- 
jured by  the  nuisance  could  prevent  damage  by  changing 
his  plant  or  his  apparatus  at  little  or  at  much  expense,  is 
no  answer.  The  fact  remains  that  the  other  party  is  an 
aggressor  and  the  expense  of  making  the  change  should  be 
borne  by  him.  The  electric  company  at  suit  of  the  tele- 
phone company  was  compelled  to  put  a  guard  under  its 
high  voltage  wires,  and  to  keep  its  wires  at  least  eight 
feet  distant  from  those  of  the  telephone  company.  And 
the  remedy  it  was  held,  exists  at  law  or  in  equity.44 

29.    Injury  due  to  lawful  operation  distinct  from  aggression. 

The  cases  fall  into  a  distinct  line  of  cleavage  at  this 
point.  There  is  a  distinction  between  injury  due  to  the 
ordinary  operation  of  an  electric  railway,  because  of  the 
escape  of  electricity  from  the  rails,  and  cases  of  direct 
aggression,  where  an  invading  electric  company  places 
wires  of  high  voltage  unguarded,  and  unnecessarily  near 
those  of  another  company  using  a  lower  voltage,  and  cer- 
tain to  be  influenced  by  the  stronger  current.  We  may  ob- 
serve, therefore,  that  an  invading  company  will  never  be 
permitted  to  come  so  close  with  its  apparatus  to  the  estab- 
lished company  as  to  do  harm,  but  that  harm  merely  inci- 
dental to  the  valid  exercise  of  a  lawful  franchise  is  not  the 
basis  of  an  action.45 

(44)  Western  Union  Telegraph  Co.  v.  Guernsey  &  Scudder 
Elec.  Light  Co.,  46  Mo.  App.  120;  3  Am.  Elec.  Cas.  425,  1891. 

(45)  Western  Union  Telegraph  Co.  v.  Guernsey  &  Scudder 


INJUNCTIONS  AND  OTHER  REMEDIES.  43 

30.  Accommodation  of  conflicting  franchises. 

Since  the  efforts  of  the  courts  should  be  to  accommodate 
both  franchises  so  as  to  enable  both  to  exercise  their  cor- 
porate rights,  the  mere  presence  of  both  companies  on 
the  same  street  is  not  sufficient  to  justify  the  first  com- 
pany in  an  effort  to  exclude  the  second.  Where  difficulty 
and  conflict  could  be  avoided  by  having  the  wires  of  the 
second  company  placed  twenty-five  feet  above  those  of  the 
first,  the  court  decided  that  the  first  company  was  not  en- 
titled to  an  injunction.46 

31.  First  franchise  on  given  territory  not  exclusive. 

The  right  of  the  first  holder,  it  was  said,  is  not  abso- 
lutely exclusive.  It  is  subject  to  such  incidents  as  result 
from  the  exercise  of  the  rights  of  other  parties  who  have 
acquired  a  valid  franchise  of  similar  character.  It  is  im- 
plied in  such  grants  as  were  here  made  to  the  first  com- 
pany that  the  grant  is  subject  to  such  limitations  as  will 
enable  another  company  to  enjoy  a  like  franchise,  and  no 
property  right  is  invaded  by  the  adoption  of  such  meas- 
ures by  the  second  company  as  will  enable  it  to  exercise 
its  privilege,  provided  there  is  no  unreasonable  and  un- 
necessary invasion  of  the  operations  of  the  first  occupant. 
For  the  property  right  of  the  first  is  not  to  a  monopoly. 

The  court  said  by  way  of  modification,  "It  is  not  in- 
tended, of  course,  to  say  that  the  first  occupant  may  be 
despoiled,  or  the  substance  of  its  right  appropriated.  But 
this  does  not  happen  from  merely  giving  place  to  a  rival 

Electric  Light  Co.,  46  Mo.  App.  120 ;  3  Am.  Elec.  Gas.  425,  1891 ; 
Cumberland  Telephone  &  Telegraph  Co.  v.  United  Electric  Rail- 
way Co.,  42  Fed.  Rep.  273;  12  L.  R.  A.  544;  3  Am.  Elec.  Gas. 
408,  1890. 

(46)  Louisville  Home  Telephone  Company  v.  Cumberland 
Telephone  &  Telegraph  Co.,  Ill  Fed.  Rep.  663,  1901,  reversing 
110  Fed.  Rep.  593. 


44  CONFLICTING  USES  OF  ELECTRICITY. 

company,  whose  presence  was  expressly  stipulated  for  by 
the  contract,  nor  probably,  if  the  presence  of  the  new  party 
was  the  result  of  the  exercise  of  a  power  reserved  by  im- 
plication in  such  a  grant  of  privileges.  The  distinction 
between  the  actual  invasion  of  the  property  of  a  former 
licensee  engaged  in  supplying  public  utilities,  and  those 
incidental  consequences  which  result  from  the  authorized 
exercise  of  the  privileges  granted  to  a  subsequent  licensee 
for  similar  purposes  was  pointed  out  in  an  elaborate  opin- 
ion by  Mr.  Justice  Brown,  now  a  justice  of  the  Supreme 
Court,  in  Cumberland  Telephone  and  Telegraph  Co.  v. 
United  Electric  Railway  Company.47 

But  it  is  to  be  noted  that  some  at  least  of  the  conclu- 
sions reached  in  Cumberland  Telephone  and  Telegraph 
Company  v.  United  Electric  Railway  Company,  have 
been  shaken  in  the  case  of  Peoria  Water  Works  Com- 
pany v.  Peoria  Railway  Company.48 

32.    Ordinances  requiring  guard  wires. 

Carrying  this  principle  farther,  the  telephone  company 
aware  of  the  fact  that  the  railway  company  has  not  pro- 
vided guard  wires,  should  have  the  right  to  compel  the 
erection  of  such  wires  by  mandamus.  And  this  decision 
has  been  reached  where  a  municipal  ordinance  required 
the  maintenance  of  guard  wires  by  "an  electric  railway 
company  whenever  it  should  be  necessary  to  cross  tele- 
phone lines."49  As  a  constitutional  question  it  has  been  set- 

(47)  Cumberland  Telephone  &  Telegraph  Co.  v.  United  Elec- 
tric Railway  Company,  42  Fed.  Rep.  273;  12  L.  R.  A.  544;  3 
Am.  Elec.  Cas.  408,  1890. 

(48)  Peoria  Waterworks  Co.  v.  Peoria  Railway  Company, 
181  Fed.  Rep.  990,  at  p.  1004. 

(49)  State  v.  Janesville  Street  Railway  Co.,  87  Wis.  72;  57 
N.  W.  970;  4  Am.  Elec.  Cas.  289,  1894. 


INJUNCTIONS  AND  OTHER  REMEDIES.  45 

tied  that  such  an  ordinance  applies  to  crossings  previously 
in  existence.50 

"We  are  of  the  opinion  that  the  facts  set  out  in  the  rela- 
tion are  sufficient  to  entitle  the  relator  company  to  the 
remedy  asked  for:  (i)  The  telephone  company  occu- 
pied the  streets  of  the  city  with  its  poles  and  wires,  and 
was  in  the  safe  and  successful  prosecution  of  its  business, 
under  the  authority  of  law  and  "by  the  permission,  con- 
sent, and  approval"  of  the  city  of  Jonesville.  (2)  The  de- 
fendant company  afterwards  sets  its  poles  and  extends 
its  wires  along  the  same  streets,  so  that  its  lines  frequently 
cross  the  lines  of  the  relator,  and  in  such  near  contact  as 
to  endanger  the  persons  in  its  employment,  and  its  prop- 
erty, and  threaten  the  destruction  of  its  business.  Has 
the  defendant  the  right  to  do  this,  if  it  is  in  its  power  to 
prevent  the  threatened  mischief  ?  By  the  common  maxim 
that  one  person  has  no  right  to  use  his  own  to  the  injury 
of  another,  and  by  the  common  principles  of  elementary 
law,  it  would  seem  that  it  had  not.  The  defendant  has 
intruded  upon  the  established  business  of  the  relator  in 
such  a  way  as  to  endanger  it  and  the  persons  engaged 
in  it,  when,  by  the  adoption  of  such  a  simple  safeguard 
and  the  only  practicable  one,  such  danger  can  be  avoided 
and  the  business  of  both  subsist  together.  Ought  not  the 
defendant  to  be  compelled  to  adopt  such  safeguard  ?  These 
facts  are  admitted  by  the  demurrer.  The  learned  counsel 
of  the  respondent  insists  that  the  relator  had  not  such 
priority  of  its  business  by  any  right.  It  is.  averred  in  the 
relation  that  it  was  established  according  to  law  and 
prosecuted  "by  the  permission,  consent  and  approval"  of 
the  city.  That  would  clearly  give  the  relator  a  right,  and 
that  right  and  its  enjoyment  were  prior  to  any  right  of 

(50)     State  v.  Janesville  Street  Eailway  Co.,  87  Wis.  72;  57 
N.  W.  970;  4  Am.  Elec.  Cas.  289,  1894. 


46  CONFLICTING  USES  OF  ELECTRICITY. 

the  defendant.  The  relator's  wires  are  up  in  the  streets, 
bearing  sufficient  electrical  power  to  make  telephonic  com- 
munications, and  the  defendant  crosses  them  in  many 
places  with  its  wires,  bearing  electrical  power  sufficient  to 
propel  the  cars  upon  its  street  railway,  and  the  first  storm 
that  comes  may  blow  down  the  poles  and  wires  of  the  re- 
lator,  and  its  wires  come  in  contact  with  the  wires  of  the 
defendant,  where  they  cross  each  other,  and  become 
charged  with  its  dangerous  currents  of  electricity,  set  fire 
to  the  buildings  in  which  the  telephone  instruments  are 
used,  and  injure  other  property  and  the  persons  employed 
in  the  "exchange"  and  other  places,  so  as  to  endanger  or 
destroy  the  business  of  the  relator.  Ought  not  the  de- 
fendant to  be  compelled  to  adopt  the  above  safeguards  to 
prevent  this  threatened  mischief,  or  to  withdraw  its  lines 
from  the  vicinity  of  the  relator's  wires?  The  company 
that  caused  the  mischief  ought  to  repair  it. 

"Sec.  7  of  the  ordinance  of  the  city  dated  October  10, 
1892,  imposes  this  duty  upon  the  company  using  this 
"electrical  power  system"  in  all  cases,  and  requires  it  to 
apply  such  safeguards  under  a  penalty.  But  much  more 
is  it  the  duty  of  such  company  when  it  is  an  intruder  upon 
the  already  established  business  of  another  company.  The 
electric  force  is  the  most  powerful  and  dangerous  agency 
of  nature,  and,  even  when  restrained  or  controlled  by  the 
most  perfect  machinery  and  appliances,  its  high  tension 
currents  are  extremely  dangerous  in  many  directions.  If 
a  municipal  corporation  has  not  the  inherent  provisional 
or  police  power  to  pass  ordinances  to  regulate  or  restrain 
the  use  of  such  a  dangerous  agency  within  the  corporate 
limits,  it  certainly  cannot  have  such  power  for  any  pur- 
pose. 

"It  is  claimed  that  said  ordinance  has  only  future  oper- 
ation or  effect.  In  application  to  the  case,  Sec.  7  of  the 


INJUNCTIONS  AND  OTHER  REMEDIES.  47 

said  ordinance  provided:  'Whenever  it  shall  be  neces- 
sary to  cross.  .  .  .  telephone  line  or  lines  of  any 
wires  used/  etc.  Has  it  not  been  necessary  for  the  de- 
fendant company  to  cross  these  telephone  lines  or  wires 
of  the  relator  since  the  passage  of  the  ordinance, 
and  is  it  not  now  necessary  to  do  so?  Then  the  ordin- 
ance, by  its  terms,  is  applicable  to  this  case.  The  ordin- 
ance is  made  to  regulate  existing  things,  and  things  which 
continue  to  exist,  as  the  wires  of  the  defendant  cross  the 
wires  of  the  relator.  Whenever,  at  any  time,  wires  so 
cross,  this  safeguard  must  be  applied.  The  ordinance  has 
a  present  and  future  effect.  It  is  said  these  wires  crossed 
before  the  ordinance  was  passed.  That  is  true,  and  they 
have  continued  to  cross  ever  since,  in  violation  of  the  or- 
dinance. The  ordinance  does  not  prohibit  the  crossing 
of  such  wires.  It  provides  the  remedy  for  it  as  an  exist- 
ing evil,  and  requires  safeguards  to  be  so  placed  as  to 
avoid  the  danger  to  persons  and  property.  It  is  not  retro- 
active in  any  sense. 

"First.  The  ordinance  is  reasonable,  because  it  requires 
that  to  be  done  which  in  law  and  good  conscience  the  de- 
fendant ought  to  do  for  the  protection  of  the  relator, 
whose  established  business  it  has  endangered  and  dis- 
turbed. Second.  It  is  clearly  sustained  under  the  police 
power  of  the  city.  'The  test  is  whether  it  is  designed  and 
tends  to  protect  some  public  or  private  right  from  the  in- 
jurious act  of  the  company;  as  when  it  prohibits  the  run- 
ning of  the  cars  of  one  company  on  any  street  so  near  the 
depot  of  another  railroad  as  to  interfere  with  safe  and 
convenient  access  to  the  latter  road.'  Tied.  Lim.  597- 
599.  The  statute  of  New  York,  requiring  telegraph,  tele- 
phone, and  electric  wires  to  be  placed  underground  in 
streets  in  certain  cities  (ch.  499,  Laws  of  1885),  was  up- 


48  CONFLICTING  USES  OF  ELECTRICITY. 

held  in  People  ex  rel.  N.  Y.  E.  L.  Co.  v.  Squire,51  and 
Western  Union  Telegraph  Company  v.  New  York."  52 

33.    Principle  of  dominant  use  of  highway.    Application. 

The  principle  that  the  dominant  use  of  streets  is  that 
of  the  public  for  travel  applies  not  only  to  modes  of  travel 
in  use  when  the  telephone  is  placed  in  the  highway,  but 
any  future  ones  that  the  progress  of  science  may  intro- 
duce. The  telephone  company  has  no  ground  of  com- 
plaint arising  from  such  circumstances.63  It  is  powerless, 
therefore,  to  enjoin  the  operation  of  an  electric  road.54 

This  conclusion  is  almost  inevitable  from  the  propo- 
sitions first  settled  as  necessary  a  priori  notions  in  all  sim- 
ilar problems.  All  the  parties  are  licensees  from  the  muni- 
cipality. The  first  license  does  not  take  all  that  the  city, 
town,  township  or  borough  may  have  to  give,  but  only  a 
right  subject  to  the  city's  or  other  municipality's  power  to 
grant  a  similar  right  for  the  same  or  for  some  other  pur- 
pose, and  this  though  the  first  licensee  may  suffer  some 
inconvenience.1 


55 


(51)  People  ex  rel.  N.  Y.  E.  L.  Co.  v.  Squire,  107  N.  Y.  593, 
1888;  14  N.  E.  500. 

(52)  Western  Union  Telegraph  Company  v.  New  York,  38 
Fed.  Rep.  552,  1889. 

(53)  Wisconsin  Telephone  Co.  v.  Eau  Claire  Street  Ry.  Co., 
3  Am.  Elec.  Cas.  383,  1890. 

(54)  East  Tennessee  Telephone  Co.  v.  Knoxville  Street  Ry. 
Co.,  3  Am.  Elec.  Cas.  400,  1890. 

(55)  Western  Union  Telegraph  Co.  v.  Guernsey  &  Scudder 
Electric  Light  Co.,  46  Mo.  App.  120,  1891. 


CHAPTER  V. 

ENGLISH  AND  CANADIAN  DOCTRINES. 

34.  The  English  point  of  view. 

35.  Effect  of  English  doctrine.    Application  to  submarine  cable. 

36.  Doctrine  of  statutory  immunity. 

37.  Canadian  authorities. 

38.  Private  persons  cannot  restrain  exercise  of  electric  fran- 

chises. 

34.    The  English  point  of  view. 

The  English,  American  and  Canadian  cases  upon  the 
subject  of  conflicting  uses  of  electricity  have  exercised 
a  great  deal  of  influence  upon  each  other.  The  case  of 
National  Telephone  Co.  v.  Baker,56  has  been  widely 
quoted  and  followed. 

In  that  case,  the  telephone  company,  operating  in  the 
city  of  Leeds,  was  employing  the  "single  wire"  system, 
the  earth  being  used  as  a  return  circuit.  The  defendant 
was  a  railway  company  authorized  to  construct  a  street 
railway  in  Leeds,  but  it  was  expressly  stipulated  that  the 
operation  of  its  lines  should  not  cause  harm  to  any  tele- 
graphic lines,  by  induction  or  otherwise.  The  railway 
company  made  use  of  the  single  trolley  system.  It  was 
found  that  the  operation  of  the  railway  system  rendered 
the  telephone  lines  useless,  and  an  injunction  was  sought 
as  for  a  nuisance.  It  was  also  in  evidence  that  the  dis- 
turbance to  the  telephone  system  could  be  obviated  by  the 
employment  of  a  complete  metallic  circuit. 

The  court  decided  that  the  doctrines  of  Rylands  v. 
Fletcher,57  applied,  and  that,  if  the  situation  of  the  par- 

(56)  National  Telephone  Co.  v.  Baker,  L.  R.   (1893)   2  Ch. 
186. 

(57)  Eylands  v.  Metcher,  3  H.  L.  C.  330,  1868. 

4  49 


5O  CONFLICTING  USES  OF  ELECTRICITY. 

ties  had  been  equal  in  other  respects,  the  plaintiff  would 
have  been  entitled  to  an  injunction.  But,  it  was  said, 
"the  defendants  are  expressly  authorized  to  use  electrical 
power,  and  the  legislature  must  be  taken  to  have  contem- 
plated it,  and  to  have  condoned  by  anticipation  any  mis- 
chief arising  from  the  reasonable  use  of  such  power." 
This  phrase  has  been  made  the  basis  of  many  expressions 
of  opinion  in  the  American  cases.  The  injunction  was 
denied  upon  these  grounds. 

It  must  be  noted  that  one  element  of  fact  which  ap- 
peared in  the  case,  was  that  the  trolley  system  was  oper- 
ated in  accord  with  a  reasonably  modern  standard  of  effi- 
ciency, while  the  telephone  company  was  using  a  system 
that  could  not  even  then  be  considered  of  a  high  order  of 
efficiency. 

35.    Effect  of  English  doctrine.    Application  to  submarine  cable. 

But  this  much  may  be  taken  as  settled  by  the  English 
cases;  electricity  has  been  given  a  place  with  dangerous 
agents,  which  fall  under  the  rule  of  Rylands  v.  Fletcher. 
Their  use,  in  general,  makes  the  user  an  insurer  that  no 
harm  will  result.  In  the  case  of  Eastern  and  South  Afri- 
can Telegraph  Company  v.  Cape  Town  Tramways  Com- 
pany,58 the  submarine  cable  of  the  telegraph  company  was 
rendered  useless  by  the  operation  of  the  defendant's  trol- 
ley cars.  In  this  case  also  the  statute  authorizing  the 
railway  company  provided  "The  company  specially  un- 
dertakes that,  in  the  event  of  any  electric  leak  taking  place, 
and  any  damage  thereby  being  caused  at  any  time,  by 
electrolysis  or  otherwise,  it  will  reimburse  and  make  good 
to  the  council  or  other  body  or  person  all  costs,  damages, 
and  expenses  to  which  the  council  or  other  body  or  per- 

(58)  Eastern  and  South  African  Telegraph  Company  v.  Cape 
Town  Tramways  Company,  L.  R.  App.  Gas.  (1903)  381. 


ENGLISH  AND  CANADIAN  DOCTRINES.  51 

son  may  be  put  by  reason  thereof,  and  provided  further 
that  nothing  in  this  act  contained  shall  entitle  the  com- 
pany to  use  the  rails  of  the  said  lines  of  tramway  as  a 
part  of  its  system  of  conductors  for  the  return  electrical 
current  without  the  consent  of  the  council  first  had  and 
obtained." 

It  appeared  that  fully  30  per  cent,  of  the  current  of  the 
railway  system  escaped  into  the  earth  and  sea  and  trav- 
elled along  the  sheathing  of  the  submarine  cable,  render- 
ing the  cable  useless.  The  telegraph  company  eliminated 
the  injury  by  laying  a  twin  core  cable  for  several  miles 
out,  the  two  wires  rectifying  each  other's  action,  and  sued 
for  the  expense. 

The  court  said  that  although  the  twin  cable  was  not 
necessarily  generally  used  and  recognized,  it  demonstrated 
that  the  electric  escape  in  question  is  not  destructive  of 
telephone  communication  generally,  but  only  that  it  af- 
fects instruments  made  in  a  certain  way. 

It  was  decided  finally,  that  the  principle  of  Rylands  v. 
Fletcher.59  imposes  a  liability  on  a  proprietor  which  is 
measured  by  the  non-natural  use  of  his  own  property,  not 
by  that  of  his  neighbor.  It  applies  to  a  proprietor  who 
stores  electricity  on  his  land  if  it  escapes  therefrom  and 
injures  a  person  or  the  ordinary  use  of  property.  It  does 
not  apply  to  the  case  of  injury  done  by  minute  currents  of 
the  escaping  force  to  a  peculiar  trade  apparatus  unneces- 
sarily so  constructed. 

36.    Doctrine  of  statutory  immunity. 

Giving  to  the  proposition  that  the  cable  might  or  might 
not  have  been  laid  as  a  twin  core  cable,  its  fullest  possible 
effect,  it  is  difficult  to  follow  the  reasoning  used  in  arriv- 
ing at  the  decision.  Half  of  the  factors  that  should  affect 

(59)     Rylands  v.  Fletcher,  (1868)  L.  R.  3  H.  L.  C.  330. 


52  CONFLICTING  USES  OF  ELECTRICITY. 

any  conclusion  reached  in  the  case  are  ignored — the  fact 
that  the  railway  company  took  no  precautions  to  prevent 
leakage,  but  left  its  rails  in  electrical  contact  with  the 
earth ;  the  fact  that  as  high  as  30  per  cent,  of  the  current 
escaped;  the  fact  that  the  zone  influenced  by  the  trolley 
operations  extended  far  out  into  the  sea ;  the  fact  that  the 
statute  expressly  placed  a  condition  of  liability  on  the  use 
of  the  earth  as  a  return  circuit;  the  fact  that  the  trolley 
company  sought  and  regarded  nothing  but  its  own  con- 
venience, all  are  lightly  passed  over  or  ignored,  and  a  re- 
covery is  denied.  This  case  carries  to  the  limit  the  doc- 
trine of  statutory  immunity. 

37.     Canadian  authorities. 

The  Canadian  authorities  are  in  substantial  accord  with 
the  decisions  reached  in  the  United  States.  The  statute 
of  34  Viet.  C.  45',  authorized  street  railways  to  use  motive 
power  produced  by  steam,  caloric,  compressed  air,  or  by 
any  other  means  or  machinery  whatever.  It  has  been  set- 
tled that  this  statute  confers  on  street  railway  companies 
the  right  to  propel  their  cars  by  electricity. 

A  telephone  company  sought  to  recover  from  the  rail- 
way company  the  sum  of  $27,672.07  for  the  expense  of 
converting  the  system  from  the  earth  circuit  to  the  Mc- 
Cluer  Device,  it  being  admitted  that  the  necessity  for  the 
change  was  occasioned  by  the  railway  company. 

The  decision  settled  the  propositions : 

1.  That  the  telephone  company  was  bound  to  make 
the  change  sooner  or  later,  because  of  the  growing  use 
of  electricity,  irrespective  of  the  railway  companies. 

2.  The  use  of  the  highway  for  travel  is  superior  to 
any  other  use. 

3.  The  Sprague  system  is  a  lawful  and  proper  one. 


ENGLISH  AND  CANADIAN  DOCTRINES.  53 

4.  The  use  of  the  earth  for  a  return  circuit  is  not  the 
exclusive  property  of  any  company. 

5.  A  street  railway  company  cannot  be  compelled  to 
use  a  double  trolley  system. 

6.  The  telephone  company  cannot  recover  the  expense 
of  changing  its  system  from  an  earth  circuit  system  to  the 
McCluer  or  common  return  system.60 

38.    Private  persons  cannot  restrain  exercise  of  electric  fran- 
chises. 

And  that  seems  to  be  view  that  must  prevail  in  the 
United  States.  For  citizens  as  such  have  no  power  to 
compel  by  mandamus  the  removal  of  electric  railway  poles 
that  have  been  erected  under  authority  granted  by  a  bor- 
ough.61 And  a  fortiori,  the  abutting  owners  are  equally 
powerless  to  abate  a  statutory  nuisance,  assuming  the 
maintenance  of  a  street  railway  to  be  a  nuisance.62  Abut- 
ting owners  cannot  enjoin  the  erection  of  a  single  over- 
head wire  trolley  system,63  nor  can  a  single  owner  enjoin 
the  erection  of  poles  before  his  own  lot.  But  this  does 
not  mean  that  he  is  not  to  be  compensated  for  any  injury 
that  he  may  have  suffered  in  consequence.64  Nor  can  he 
prevent  the  change  from  horse  power  to  electric  power.65 

(60)  Bell   Telephone   Co.   v.    Montreal   St.   Ry.    Co.,   6   Q. 
B.  223.     (Rapports  Judicares  de  Quebec.) 

(61)  Commonwealth  v.  West  Chester,  9  Pa.  C.  C.  542,  1891. 

(62)  Lockhart  v.  Craig  Street  Railway  Co.,  135  Pa.  419, 
1891;  21  Atl.  Rep.  26,  1891. 

(63)  Pelton  v.  East  Cleveland  Railroad  Company,  3  Am. 
Elec.  Gas.  215,  1889. 

(64)  Tracy  v.  Troy  &  Lansingburgh  R.  R.  Co.,  54  Hun.  550 ; 
3  Am.  Elec.  Cas.  227,  1889. 

(65)  Tracy  v.  Troy  &  Lansingburgh  R.  R.  Co.,  54  Hun.  550; 
3  Am.  Elec.  Cas.  227,  1889. 


CHAPTER  VI. 

PRIORITY  OF  FRANCHISE  AS  CONFERRING  VESTED  RIGHTS. 

39.  First  franchise  holder  must  not  be  disturbed. 

40.  Priority  in  a  given  territory  gives  vested  rights. 

41.  Exclusive  franchises  against  public  policy. 

42.  Invading  companies  may  be  restrained. 

43.  But  private  uses  must  give  way  to  public  ones. 

39.    First  franchise  holder  must  not  be  disturbed. 

Normally,  the  holder  of  the  earliest  franchise  in  point 
of  time  has  a  vested  right  to  the  undisturbed  exercise  of 
its  franchise.  This  has  been  modified  occasionally  to  es- 
tablish the  principle  that  a  public  use  is  superior  to  all 
other  uses,  and  hence,  that  even  a  prior  licensee  must 
yield  to  a  later  one  which  has  secured  a  public  contract. 
This  doctrine  is  open  to  criticism.  In  the  case  under  con- 
sideration, an  electric  light  company  had  erected  poles  and 
wires  and  was  operating  its  lines  in  the  city  of  Terre 
Haute,  when  a  second  company  which  had  been  awarded 
a  contract  for  lighting  the  city  streets,  erected  its  poles  and 
wires  in  such  a  manner  as  to  interfere  seriously  with  the 
operation  of  its  lines  by  the  first  company.  The  court 
compelled  the  first  company  to  make  whatever  changes 
were  necessary  to  avoid  conflict,  upon  the  theory  that  the 
public  contract  was  awarded  with  the  tacit  condition 
that  the  successful  bidder  must  have  the  undisputed  right 
to  the  city  streets  for  its  poles  and  wires.66  There  is 
more  in  this  decision  than  appears.  For,  the  proposition 
settled  by  the  court,  if  sound,  means  that  no  rights  vest 
in  the  first  licensee  which  the  municipality  is  bound  to  re- 

(66)  Terre  Haute  Electric  Light  &  Power  Co.  v.  Citizen's 
Electric  Light  &  Power  Co.,  1  Am.  Elec.  Cas.  193,  1895. 

54 


PRIORITY  OF  FRANCHISE VESTED  RIGHTS.  55 

spect,  it  has  only  to  grant  a  public  contract  to  a  second 
licensee,  to  divest  the  rights  previously  granted  to  the  first 
licensee.  This  is  not  in  accord  with  reason,  nor  with  the 
weight  of  authority.  The  first  licensee  having  in  good 
faith  established  its  plant  by  virtue  of  the  license  from  the 
municipality,  has  acquired  a  contractual  right  to  operate 
its  lines  undisturbed  by  municipal  or  any  other  authority. 
If,  therefore,  the  city  creates  new  conditions  by  awarding 
a  public  contract  to  a  second  licensee,  the  expense  of  mak- 
ing any  changes  in  existing  systems  of  lighting  for  exam- 
ple, should  be  borne  by  the  newcomer. 

The  courts  are  not  in  harmony  as  to  the  adjustment 
to  be  reached,  where  the  invading  railway  company  com- 
pels the  telephone  company  to  protect  itself  by  adopting 
a  complete  metallic  circuit.  The  courts  of  Ohio  and  Ten- 
nessee usually  permit  the  telephone  company  to  recover 
the  additional  expense  to  which  it  is  put  by  the  railway 
company,  but  they  deny  an  injunction  to  restrain  the 
operation  of  the  railway.67 

Again,  in  Canada,  interference  was  restrained  in  the 
case  of  B'ell  Telephone  Co.  v.  Belleville  Electric  Light  Co., 
but  the  defendant  in  that  case  was  an  electric  light  com- 
pany and  not  a  railway  company.68 

In  the  absence  of  statute,  the  first  party  erecting  a  tele- 
phone line,  has  superior  rights,  and  the  second  company 
in  the  field  must  not  interfere  with  them.69 

(67)  Central  Union  Telephone  Co.  v.  Sprague  Electric  Rail- 
way, etc.  Co.  and  the  Akron  Street  Railroad  Co.,  2  Am.  Elec. 
Cas.  307,  1889;  East  Tennessee  Telephone  Co.  v.  The  Chatta- 
nooga Electric  Street  Ry.  Co.,  2  Am.  Elec.  Cas.  323,  1889. 

(68)  Bell  Telephone  Co.  v.  Belleville  Electric  Light  Co.,  12 
Ontario,  571,  1886. 

(69)  Northwestern  Telephone  Co.  v.  Twin  City  Telephone 
Co.,  89  Minn.  495,  1903;  95  N.  W.  460. 


56  CONFLICTING  USES  OF  ELECTRICITY. 

40.    Priority  in  a  given  territory  gives  vested  rights. 

The  principle  established  is,  that  electric  companies  ex- 
ercising similar  franchises  have  equal  rights,  but  priority 
in  time  carries  superiority  of  right.  Both  franchises,  in 
a  court  of  equity,  will  be  so  controlled  as  to  admit  of  the 
operation  of  both,  but  if  conflict  be  unavoidable  the  com- 
pany last  in  the  field  must  give  way,  and  the  fact  that  the 
second  company  has  secured  a  public  contract  does  not 
alter  the  situation.70 

Should  interference  be  unavoidable,  the  later  occupant 
must  give  way  to  the  former.71  And  the  first  licensee 
may  restrain  interference  whether  due  to  induction  or  to 
direct  contact  of  wires.72  This  is  not  because  of  the  ex- 
clusive right  of  the  first  company,  but  because  of  its  prior 
right. 

The  general  principle  upon  which  the  decision  in  this 
case  rests  is — that  a  municipality  having  the  power  to  do 
so,  having  granted  to  an  electric  light  company  the  right 
to  erect  poles  and  string  wires  along  its  streets  for  the 
purpose  of  electric  lighting,  the  company  by  proceeding 
to  expend  money  upon  the  faith  of  such  a  license  acquires 


(70)  Edison  Electric  Light  &  Power  Company  v.  Merchants' 
&  Manufacturers'  Electric  Light,  Heat  &  Power  Co.,  200  Pa. 
209,  1901;  49  A.  766;  Consolidated  Electric  Light  Co.  v.  Peo- 
ple's Electric  Light  &  Gas  Co.,  94  Ala.  372,  1892;  10  So.  440, 
1892;  Monongahela  L.  &  R.  Co.  v.  Rose  Hill  Elec.  Lt.  Co.,  30 
P.  L.  J.  (Pa.)  301;  9  Am.  Elec.  Cas.  838,  1906;  Montgomery  Lt. 
&  W.  P.  Co.  v.  Citizens'  L.  H.  &  P.  Co.,  147  Ala.  359;  40  So. 
981;  9  Am.  Elec.  Cas.  776,  1906. 

(71)  Edison  Electric  Light  &  Power  Co.  v.  Merchants'  & 
Manufacturers'  Electric  Light,  Heat  &  Power  Co.,  200  Pa.  209, 
1901;  49  A.  766. 

(72)  Rutland   Electric   Light   Co.   v.   Marble   City   Electric 
Light  Co.,  65  Vt.  377,  1893;  26  Atlantic  635;  27  L.  R.  A.  821. 


PRIORITY  OF  FRANCHISE VESTED  RIGHTS.  57 

a  vested  right  to  use  the  streets  for  that  purpose  which 
the  municipality  cannot  impair.73 

A  second  company,  therefore,  cannot  under  a  subse- 
quent grant  of  the  municipality  erect  and  maintain  its 
poles  and  wires  in  such  a  manner  as  to  interfere  with  the 
first.  Such  interference  will  be  enjoined.  The  principle 
that  a  telephone  company  by  erecting  its  poles  and  wires 
under  license  from  a  municipality,  acquires  a  vested  right 
which  neither  the  municipality  nor  subsequent  licensees 
could  interfere  with,  seems  generally  conceded.74 

The  effect  of  these  decisions  is  not  that  any  company 
by  obtaining  a  franchise  obtains  an  exclusive  privilege. 
The  intent  is  that  the  municipality  having  granted  the 
franchise  binds  itself  also  to  protect  the  holder  of  the  fran- 
chise against  unlawful  interference  at  least.  It  has  been 
held  that  this  privilege  or  franchise  is  not  such  that  the 
first  company  may  prevent  a  subsequent  licensee  from 
paralleling  or  overbuilding  its  lines,  whether  parallel  or 
upon,  in  any  such  a  manner  as  will  not  prevent  the  proper 
operation  of  the  old  company's  lines.75  Conversely,  the 
first  company  in  the  field  should  be  protected  if  there  is 
actual  interference,  and  this  is  the  law.76 

41.    Exclusive  franchises  against  public  policy. 

The  policy  of  the  law  works  generally  against  exclusive 
rights  or  exclusive  franchises.  But  priority,  where  con- 

(73)  Rutland  v.  Marble  City  Electric  Light  Co.,  65  Vt.  377; 
26  Atl.  Rep.  635;  27  L.  R.  A.  821;  4  Am.  Elec.  Cas.  256,  1893. 

(74)  Hudson  v.  Jersey  City,  49  N.  J.  L.  303 ;  Nebraska  Tele- 
phone Co.  v.  York  Gas  &  Electric  Co.,  27  Neb.  284;  43  N.  W. 
126;  3  Am.  Elec.  Cas.  364,  1889. 

(75)  Chicago   Telephone   Co.   v.   North  Western   Telephone 
Co.,  199  Ills.  324, 1902. 

(76)  Chicago   Telephone   Co.   v.   North  Western   Telephone 
Co.,  199  Ills.  324,  1902. 


58  CONFLICTING  USES  OF  ELECTRICITY. 

flict  is  inevitable  may  have  that  effect.  Railways  or  tele- 
phone companies  acquire  no  exclusive  vested  right,  but  if 
the  holder  of  a  subsequent  franchise  cannot  exercise  it, 
without  interfering  with  the  first  corner,  he  cannot  exer- 
cise it  at  all.77  Conversely,  if  the  second  telephone  com- 
pany, or  the  second  railway  company  can  exercise  its 
franchise  without  an  unlawful  interference  with  the  first 
company,  the  first  company  cannot  restrain  its  opera- 
tion.78 

And  new  companies  may  parallel  and  overbuild  the  old 
companies  so  long  as  no  interference  takes  place,  it  being 
settled  that  a  municipality  has  no  power  to  grant  exclu- 
sive use  of  its  streets  to  one  company  alone,  for  telephone 
purposes.79 

Therefore,  if  the  franchises  have  equal  merit,  a  corpor- 
ation occupying  a  portion  of  the  streets  with  its  equipment 
under  an  ordinance,  has  a  right  of  occupancy  which  is  a 
property  right,  that  will  be  as  much  protected  from  un- 
lawful invasion  as  any  other  property.80  The  court  in 
this  case  adopted  the  reasoning  employed  in  the  case  of 
Louisville  Home  Telephone  Company  v.  Cumberland 
Telegraph  and  Telephone  Company.81 

"In  the  recent  case  of  Louisville  Home  Telephone  Com- 
pany v.  Cumberland  Telegraph  and  Telephone  Com- 

(77)  Pennsylvania   Co.   v.   City   of   Chicago,   181  Ills.   289, 
(1899) ;  54  N.  E.  825. 

(78)  American  Telephone  &  Telegraph  Co.  v.  Morgan  County 
Telephone  Co.,  138  Ala.  597;  36  So.  178,  1903. 

(79)  Chicago   Telephone   Co.   v.   North  Western   Telephone 
Co.,  199  Ills.  324;  65  N.  E.  329,  1902;  affirming  100  Ills.  App.  57. 

(80)  Chicago  v.  Baer,  41  Ills.  306  (1866) ;  Rich  v.  Chicago, 
152  Ills.  18;  38  N.  E.  255,  1894  (Lake  Street  Elec.)  Railway  Co. 
v.  Chicago,  183  Ills.  75  (1899) ;  55  N.  E.  721. 

(81)  Louisville  Home   Telephone   Company   v.   Cumberland 
Telegraph  and  Telephone  Company,  111  Fed.  Rep.  663,  1901. 


PRIORITY  OF  FRANCHISE VESTED  RIGHTS.  59 

pany,82  where  a  telephone  company  constructed  its  line  in 
the  streets  of  a  city  under  a  franchise  granted  therefor, 
which  expressly  reserved  the  right  to  the  city  to  grant 
similar  rights  to  other  companies,  and  a  franchise  was 
granted  afterward  to  a  second  company,  which  was  re- 
quired to  construct  its  line  under  the  direction  of  the 
board  of  public  works,  and  such  board  required  its  line 
on  certain  streets  to  be  placed  on  the  same  side  and  over 
the  same  space  occupied  by  the  first  company,  it  was  said 
by  the  court:  "The  Circuit  Court  appears  to  have  ac- 
cepted as  correct  the  contention  of  the  complainant  that, 
by  its  prior  occupation  of  the  space  which  it  occupied  by 
erecting  its  poles,  cross-arms,  and  wires  over  a  width  of 
eight  feet  and  at  the  height  of  twenty-five  feet,  it  acquired 
an  exclusive  right  to  occupy  that  width  of  space  from  the 
ground  upward  without  limitation  and  this  without  any 
intrusion  by  another  party.  In  this  the  court  miscon- 
ceived the  nature  and  extent  of  the  rights  of  the  com- 
plainant. It  may  properly  be  conceded  that  its  prior 
occupation  of  space,  under  the  franchise  granted  by  the 
statute  and  ordinance,  would  entitle  it  to  continued  en- 
joyment thereof,  so  long  as  it  continued  to  perform  its 
obligations,  without  substantial  impairment.  But  its 
right  is  not  absolutely  exclusive.  It  is  subject  to  such  in- 
cidents as  result  from  the  exercise  of  the  rights  of  other 
parties,  who  have  acquired  a  valid  franchise  of  similar 
character.  It  is  implied  in  such  grants,  as  were  here  made 
to  the  first  company,  that  the  grant  is  subject  to  such  lim- 
itations, as  will  enable  another  company  to  enjoy  a  like 
franchise,  and  no  property  right  is  invaded  by  the  adop- 
tion of  such  measures  by  the  second  company,  as  will  en- 
able it  to  exercise  its  privilege,  provided  there  is  no  un- 


(82)     Louisville  Home   Telephone  Co.  v.   Cumberland   Tele- 
graph and  Telephone  Company,  111  Fed.  Rep.  663,  1901. 


6O  CONFLICTING  USES  OF  ELECTRICITY. 

reasonable  and  unnecessary  invasion  of  the  operations  of 
the  first  occupant.  For  the  property  right  of  the  first  is 
not  to  a  monopoly.  It  is  bound  to  exercise  its  privilege 
in  such  a  way  as  to  give  room  to  another  coming  in  under 
the  power  reserved.  In  the  present  case,  the  common 
council  of  the  city  expressly  reserved  the  authority  to 
grant  to  others,  if  it  should  deem  it  for  the  public  interest, 
the  same  privileges  in  its  streets  as  it  granted  to  the  com- 
plainant. It  is  not  intended,  of  course,  to  say  that  the 
first  occupant  may  be  despoiled,  or  the  substance  of  its 
right  appropriated.  But  this  does  not  happen  from 
merely  giving  place  to  a  rival  company,  whose  presence 
was  expressly  stipulated  for  by  the  contract,  nor,  prob- 
ably, if  the  presence  of  the  new  party  was  the  result  of 
the  exercise  of  a  power  reserved  by  implication  in  such  a 
grant  of  privileges."83 

"In  Illinois  Central  Railroad  Co.  v.  City  of  Chicago,84 
where  a  court  of  equity  was  asked  to  grant  an  injunc- 
tion against  interference  with  the  operation  of  a  railway 
at  a  street  crossing,  this  court  said  (p.  603)  :  "It  is  well 
understood  that  the  track  or  right  of  way  cannot,  in  the 
nature  of  things,  be  restored  to  the  same  state  of  useful- 
ness with  the  street  thereon,  as  before.  It  is  to  be  re- 
stored, so  as  not  to  impair  its  usefulness  more  than  is 
necessary  in  view  of  its  use  for  the  purposes  of  a  street, 
subject  to  the  use  by  the  railroad  company;  it  is  not  to  be 
rendered  less  useful,  except  in  so  far  as  diminished  safety 


(83)  Cumberland   Telegraph   and   Telephone   Co.   v.  United 
Electric  Railway  Co.,  42  Fed.  Rep.  273,  (1890) ;  12  L.  R.  A.  544; 
Telephone  Co.  v.  Railway  Co.,  3  Am.  Elec.  Gas.  350,   (1889); 
Western  Union  Telegraph  Co.  v.  G.  &  S.  Light  Co.,  46  Mo.  App. 
120,   (1891) ;  Illinois  Central  Railroad  Co.  v.  City  of  Chicago, 
141  Ills.  586,  (1892) ;  30  N.  E.  1036. 

(84)  Illinois  Central  Railroad  Co.  v.  City  of  Chicago,  141 
Ills.  586;  30  N.  E.  1036. 


PRIORITY  OF  FRANCHISE VESTED  RIGHTS.  6 1 

and  convenience  are  inseparable  from  its  use  by  the  pub- 
lic as  a  street  crossing.  It  is  not  expected  that  the  cross- 
ing can  be  restored  so  as  to  obviate  all  danger,  or  delay,  or 
inconvenience.  It  is  only  necessary  that  there  should  be 
no  unreasonable  impairment  of  the  usefulness  of  the  rail- 
road right  of  way." 

"One  of  the  interferences  with  appellant's  system  of 
telephone,  which  is  charged  against  appellee,  is  that,  in 
many  of  the  streets  of  the  city,  appellee  has  erected  its 
telephone  poles  and  strung  its  telephone  wires  upon  the 
same  side  of  the  street  where  the  telephone  poles  and  wires 
of  appellant  are  set  and  strung,  and  that  appellee  has  been 
guilty  of  overbuilding  the  poles  and  wires  and  telephone 
system  of  appellant;  that  is  to  say,  that  it  has  strung  its 
wires  above  the  telephone  wires  of  appellant,  instead  of 
stringing  them  below  the  same.  In  other  words,  appellee 
is  charged  by  appellant  with  "overbuilding"  and  "par- 
alleling," as  the  terms  are  used  by  the  expert  witnesses. 

"If  the  city  has  no  right  to  grant  the  exclusive  use  of 
the  street  to  one  telephone  company,  and  has  the  right  to 
grant  the  use  thereof  to  two  or  more  telephone  compan- 
ies, then  the  right  of  a  later  telephone  company,  coming 
into  the  street,  to  place  its  telephone  lines  upon  the  same 
side  of  the  street  with  the  telephone  company  coming  ear- 
lier therein,  necessarily  results  as  a  matter  of  course. 
There  are  only  two  sides  to  each  street,  and  if  there  are 
more  than  two  telephone  companies,  two  of  them  must 
necessarily  be  on  the  same  side  of  the  street.  If  one  tele- 
phone company  has  no  right  to  the  exclusive  use  of  the 
street,  it  has  no  right  to  the  exclusive  use  of  one  side  of 
the  street.  In  the  case  at  bar,  the  evidence  shows  that, 
on  many  of  the  principal  residence  streets  in  the  city, 
appellant  has  its  poles  and  wires  set  and  strung  upon  both 
sides  of  the  street.  Necessarily,  therefore,  in  such  cases 


62  CONFLICTING  USES  OF  ELECTRICITY. 

the  appellee  was  obliged  to  be,  for  a  part  of  the  route  at 
any  rate,  upon  the  same  side  of  the  street  with  appellant." 
In  the  case  already  referred  to,  of  Louisville  Home  Tele- 
phone Company  v.  Cumberland  Telegraph  and  Telephone 
Company,85  supra,  it  appeared  that  the  second  company 
placed  its  line  of  poles  and  wires  on  the  same  side  of  the 
street  occupied  by  the  first  company,  and  this  was  there 
held  to  be  no  substantial  interference  with  the  rights  of 
the  first  company.  The  right  of  the  appellee  to  be  upon 
the  same  side  of  the  street  with  the  appellant  is  substan- 
tially conceded  by  the  appellant  in  its  bill,  because  it  there- 
in avers  that  "it  was  and  is  the  duty  of  said  Northwestern 
Telephone  Company  to  so  construct  its  lines,  as  not  to 
unnecessarily  interfere  with  the  system  and  lines  of  your 
orator ;  that  it  was  and  is  the  duty  of  said  defendant  com- 
pany in  the  construction  of  its  lines,  in  cases  where  it  is 
absolutely  necessary  to  cross  or  parallel  the  lines  of  your 
orator,  to  underbuild  the  lines  of  your  orator."  This 
allegation  is  in  effect  an  admission  that,  where  it  is  abso- 
lutely necessary,  appellee  can  parallel  appellant's  lines  of 
wires,  that  is,  can  be  upon  the  same  side  of  the  street 
with  appellant.86 

The  question  of  conflicting  uses,  narrows  itself  down  at 
times,  to  problems  of  the  utmost  nicety.  Suppose  that 
the  problem  is  whether  or  not  the  placing  of  a  line  of  elec- 
tricity carrying  20,000  volts  within  three  feet  of  a  tele- 
phone line  carrying  100  volts,  is  negligence  per  se.  This 
was  held  in  a  California  case  to  be  no  evidence  whatever 
of  negligence  in  the  construction  of  the  line  of  an  electric 
power  company.  While  the  actual  case  involved  liability 

(85)  Louisville  Home   Telephone   Co.  v.  Cumberland   Tele- 
graph and  Telephone  Company,  49  U.  S.  Cir.  Ct.  of  App.  524. 

(86)  Chicago  Telephone  Co.  v.  North  Western  Telephone  Co., 
199  Ills.  324,  1902;  affirming  100  Ills.  App.  57;  65  N.  E.  329. 


PRIORITY  OF  FRANCHISE VESTED  RIGHTS.  63 

for  damages  for  the  destruction  of  property  by  fire,  the 
principle  involved  is  of  extreme  importance.  Let  us  ex- 
amine the  facts.  On  the  7th  of  September,  1902,  a  tele- 
phone terminus  was  maintained  in  the  town  of  Orland, 
California.  The  Northern  California  Power  Company 
erected  a  power  line  between  Orland  and  Germantown, 
in  the  State  of  California,  and  the  lines  of  the  power  com- 
pany were  placed  within  three  feet  of  the  lines  of  the 
telephone  company.  The  result  which  may  be  ascribed 
to  placing  the  two  lines  in  such  close  proximity  to  each 
other,  was  that  the  wind  blew  the  telephone  lines  against 
the  power  line,  with  the  result  that  the  telephone  ter- 
minus was  destroyed  by  fire.  It  was  admitted  by  the 
court  in  reaching  a  decision  that  the  fire  was  no  doubt 
caused  by  contact  between  the  telephone  wire  and  the  high 
power  wire  of  the  power  company.  It  was  also  admit- 
ted that  the  wires  came  into  contact  because  of  a  storm. 
It  must  be  observed  in  passing  on  the  merits  of  this  case 
that  in  all  cases  where  two  wires  come  into  contact,  be- 
longing to  different  companies,  and  a  third  person  is  hurt, 
the  two  companies  are  joint  tort-feasors.  In  this  particu- 
lar case,  the  plaintiff  was  the  owner  of  the  terminus  of  a 
private  telephone  line.  The  question  as  stated  by  the 
court  was,  "Is  it  negligence  for  a  power  company  to  place 
its  posts  within  three  feet  of  a  telephone  company's  line?" 
This  is  obviously  an  unfair  statement  of  the  problem,  be- 
cause the  real  question  is  whether  or  not  it  is  negligence 
to  place  posts  within  three  feet  of  a  telephone  company's 
line  when  the  difference  of  potential  between  the  two  lines 
is  at  least  19,000  volts.  The  court  held  as  a  matter  of 
fact,  that  it  was  not  negligence  for  the  defendant  to  put 
its  power  line  three  feet  from  the  telephone  lines.  The 
court  suggested  that  it  was  incumbent  upon  the  plaintiff 
to  allege  and  prove  that  the  defendant  power  company 


64  CONFLICTING  USES  OF  ELECTRICITY. 

when  it  built  its  power  line,  did  not  build  it  in  a  careful, 
workmanlike  manner,  and  in  a  manner  to  make  it  safe  as 
regards  the  persons  and  property  of  the  public;  that  it 
did  not  use  due  diligence  to  make  it  safe  when  its  position 
and  proximity  to  the  telephone  line  was  considered.  The 
court  said  further :  "Does  the  mere  undisputed  fact  that 
the  defendant  constructed  and  maintained  its  line  which 
was  of  20,000  volt  power,  a  much  higher  voltage  than 
that  of  the  telephone  line,  within  a  distance  of  three  feet 
from  the  telephone  line,  warrant  the  presumption  of  negli- 
gence on  the  part  of  the  defendant?  No  such  presump- 
tion of  law  arises  upon  the  proof  of  that  fact." 

The  reasoning  of  the  court  in  this  case  is  one  of  the 
most  remarkable  instances  of  misapprehension  of  legal 
principles  upon  record.  If  the  test  usually  given  of  negli- 
gence be  applied,  whether  or  not  an  ordinary  common- 
sense  man  would  have  acted  so  under  the  circumstances, 
then  this  case  falls  far  below  the  legal  standard  univer- 
sally established  in  the  United  States  as  well  as  in  Cali- 
fornia. There  is  not  one  whit  less  danger  in  a  rapidly  mov- 
ing buzz  saw  than  there  is  in  a  wire  carrying  20,000  volts 
of  electricity  placed  within  three  feet  of  other  wires  of 
much  less  voltage.  And  yet,  the  same  court  would  scarce- 
ly hesitate  an  instant  to  say  that  an  owner  who  left  a  mov- 
ing and  exposed  buzz  saw  on  the  street  where  passersby 
might  come  into  contact  with  it  by  the  merest  accident, 
was  guilty  not  merely  of  negligence,  but  of  wanton, 
culpable  negligence.  How  then  it  can  be  imagined  that 
the  placing  of  a  wire  carrying  20,000  volts  of  electricity 
within  three  feet  of  another  wire,  which  the  rain  or  wind, 
or  the  snow,  or  the  thunder  and  lightning,  or  any  other 
cause  likely  to  happen  at  any  moment,  might  throw  upon 
the  heavily  charged  wire,  is  not  negligence,  it  is  difficult  to 
comprehend.  At  all  events,  part  of  the  decision  may  be 


PRIORITY  OF  FRANCHISE VESTED  RIGHTS.  65 

due  to  the  fact  that  the  plaintiff  did  not  offer  adequate 
proof  of  the  negligence  of  the  defendant  company.  But 
that  the  case  of  Brown  v.  The  Northern  California  Power 
Company  should  ever  become  a  precedent  for  the  genera) 
proposition  decided  would  be  a  matter  for  much  regret.87 

42.    Invading  companies  may  be  restrained. 

In  cases  of  conflict  of  this  nature,  it  may  be  stated  as  a 
general  principle,  that  an  invading  electric  company  may 
be  restrained  by  the  holder  of  the  first  franchise  from 
placing  its  wires  within  a  "harm-producing  zone"  of  the 
first  company's  wires.  Thus,  in  the  case  of  Paris  Electric 
Light  and  Railway  Company  v.  Southwestern  Telegraph 
and  Telephone  Company,88  the  electric  light  company  was 
restrained  from  maintaining  its  wires  nearer  than  four 
feet  from  those  of  the  petitioner,  a  telephone  company. 
In  the  case  of  Western  Union  Telegraph  Company  v. 
Los  Angeles  Electric  Company,89  the  electric  light  com- 
pany was  restrained  from  operating  its  wires  so  as  to 
cause  injury  to  the  telephone  company  by  induction. 

It  is  rarely  that  a  telephone  company  seeks  to  place  its 
wires  close  to  those  of  an  electric  light  company,  but,  it 
having  been  shown  that  the  electric  light  company,  the 
plaintiff,  could  not  be  injured  by  having  the  telephone 
wires  placed  near  its  own  wires,  the  court  refused  to  re- 
strain the  erection  of  the  telephone  wires.90 

And  the  principle  is  now  universally  conceded  that  not- 

(87)  Brown   v.   Northern   California   Power   Company,   114 
Pacific,  p.  74,  1910. 

(88)  Paris  Electric  Light  &  Railway  Co.  v.  Southwestern 
Telegraph  &  Telephone  Company,  5  Am.  Elec.  Cas.  262,  1894. 

(89)  Western   Union    Telegraph   Company   v.   Los   Angeles 
Electric  Company,  6  Am.  Elec.  Cas.  202,  1896. 

(90)  Nebraska  Telephone  Co.  v.  York  Gas  &  Electric  Light 
Co.,  43  N.  W.  126,  1889. 

5 


66  CONFLICTING  USES  OF  ELECTRICITY. 

withstanding  a  grant  of  an  exclusive  franchise  to  occupy 
the  city  streets  to  one  electric  company,  a  later  company 
cannot  be  prevented  from  entering  the  same  territory 
where  there  is  no  conflict  in  the  exercise  of  the  two  fran- 
chises, other  than  mere  business  competition.91 

This  distinction  may  be  taken  as  established: — that 
priority  of  time  never  means  a  vested  right  to  a  monopoly 
of  the  business  in  a  given  territory.  If  the  franchises 
can  be  exercised  simultaneously  both  have  a  right  to  oper- 
ate. 

43.    But  private  uses  must  give  way  to  public  ones. 

If  the  conflict  in  the  use  of  electricity  be  between  a 
holder  of  a  franchise  and  one  who  has  no  franchise,  the 
public  use  being  higher  than  the  private  use,  must  be 
preferred.  And  the  fact  that  the  private  user  of  electric- 
ity is  first  in  the  field  is  of  no  weight. 

An  electric  light  company  holding  a  franchise  to  oper- 
ate in  the  city  of  Pittsburg,  was  sued  by  the  owner  of  a 
small  electric  light  plant  to  enjoin  the  electric  company 
from  cutting  the  wire  of  the  plaintiffs,  which  was  stretched 
across  a  street  on  which  the  electric  light  company  oper- 
ated. The  electric  light  company  cut  the  wire  frequently, 
on  the  ground  that  it  endangered  the  public  and  its  con- 
sumers because  of  the  possibility  of  contact  of  the  two 
systems. 

The  plaintiff's  wires  were  lawfully  placed.  They  had 
the  consent  of  the  owners  upon  whose  houses  the  wires 
were  attached,  and  the  wire  did  not  interfere  with  the  use 
of  the  highway. 

It  was  decided  that  the  maintenance  of  the  wire  was 


(91)     Grand  Rapids  Electric  Light  &  Power  Co.  v.  Grand 
Rapids  E.  E.  L.  &  F.  G.  Co.,  33  Fed.  Rep.  659,  1888. 


PRIORITY  OF  FRANCHISE VESTED  RIGHTS.  67 

not  as  such  a  nuisance,  but  might  be  if  it  interfered  with 
a  public  user. 

"To  constitute  an  interference  with  the  public  user  of 
the  street  by  the  light  company,  it  is  not  necessary  that 
the  wire  complained  of  should  be  in  contact  with  those  of 
the  light  company,  or  physically  obstruct  the  wires  or 
poles  of  that  company.  We  are  of  opinion  that  if  its  ex- 
istence endangers  wires  of  the  light  company  to  any  ap- 
preciable extent,  it  must  be  deemed  to  be  a  nuisance. 

"The  light  company  being  specially  injured  by  the 
maintenance  of  the  wire  of  the  complainants,  being  the 
only  party  who  is  injured  thereby,  has  standing  to  main- 
tain the  bill  for  its  removal." 

The  maintenance  of  the  private  wire  was  enjoined. 

The  Supreme  Court  affirming  this  decree  said  "The 
wire  described  in  the  findings  of  fact  is  one  that  passes 
across  the  street,  near  the  plaintiff's  wires,  the  mainten- 
ance of  which  interferes  in  some  measure  with  the  use  of 
the  street  by  the  plaintiff,  endangers  the  lives  of  its  cus- 
tomers, imperils  its  property,  and  entails  an  additional  ex- 
pense for  inspection."  92 

(92)  Wettengel  v.  Allegheny  County  Light  Co.,  223  Pa.  79, 
1909. 


CHAPTER  VII. 

PRINCIPLES    BEARING    ON     CONFLICTING    USES    OF    ELEC- 
TRICITY. 

44.  Consequences  of  doctrine  that  railway  is  a  dominant  use  of 

the  highway. 

45.  Facts  for  the  jury. 

46.  Statutory   authority   answers    claim   that    franchise   is    a 

nuisance. 

47.  Does  the  electric  light  facilitate  travel? 

48.  The  doctrine  of  Eylands  v.  Fletcher. 

49.  Contrast  of  English  and  American  principles. 

44.    Consequences  of  doctrine  that  railway  is  a  dominant  use  of 
the  highway. 

It  will  be  found  generally  that  the  corollaries  of  the 
doctrines  that  the  street  railways  further  travel,  and  con- 
stitute a  dominant  use  of  the  highway  in  cities  are  fol- 
lowed in  all  of  their  logical  consequences.  Assume  the 
principle  that  the  railway  is  a  dominant  use;  that  it  adds 
no  new  burden  to  the  streets;  from  this  we  reason  that 
the  erection  of  trolley  poles  does  not  add  a  new  burden 
to  the  streets,  and  does  not  constitute  a  nuisance.  Sup- 
pose, then,  that  an  abutting  owner  seeks  to  enjoin  the 
erection  of  trolley  poles  on  the  ground  that  the  telephone 
service  in  his  house  would  be  rendered  useless  by  induc- 
tion from  the  trolley  wire.  Clearly  the  injunction  cannot 
be  granted.  For, 

If  a  nuisance,  it  is  a  public  nuisance  affecting  the  com- 
munity or  a  part  of  it  generally,  but 

A  public  nuisance  can  be  redressed  by  a  private  citizen 
only  by  showing  injury  special  to  himself.93 

(93)  Morris  &  Essex  Ry.  Co.  v.  Newark  Passenger  Ry.  Co., 
51  N.  J.  Equity  379;  29  Atlantic  184,  1893. 

68 


CONFLICTING  USES  OF  ELECTRICITY.  69 

And  this  injury  affects  the  entire  telephone-using  pub- 
lic. 

Or,  to  cling  to  the  text,  the  railway  franchise  is  super- 
ior, it  is  not  a  nuisance,  and  the  telephone  company  can- 
not accomplish  indirectly  through  a  private  citizen,  what 
it  is  unable  to  enforce  as  the  holder  of  a  franchise.94 

45.  Facts  for  the  jury. 

Narrowing  the  problems  involved  still  further  it  seems 
that  the  jury  and  not  the  court  must  determine  whether 
or  not  the  fact  that  the  street  railway  company  failed  to 
erect  guard  wires  over  its  trolley  wires  to  prevent  tele- 
phone and  other  wires  from  falling  across  it  constitutes 
negligence.95 

Whenever  the  use  of  a  public  street  by  the  licensee  is 
antagonistic  to  its  use  as  a  public  highway,  such  private 
use  must  give  w)ay  to  the  public  use.  But  this  is  not  so, 
as  to  incidental  damages  to  abutting  owners  for  injury 
due  to  the  erection  of  poles.96 

46.  Statutory   authority   answers   claim  that   franchise   is   a 

nuisance. 

In  England  we  have  seen,  the  recognition  of  a  franchise 
by  the  national  government  is  of  itself  an  answer  to  any 
claims  that  the  exercise  of  the  franchise  is  a  nuisance. 
In  the  United  States,  the  franchise  does  not  gain  so  much 
potency  by  reason  of  government  recognition  as  in 
England.  The  act  of  July  24,  1866,  Rev.  Stats.  U.  S., 
Sees.  5263  to  5268,  is  entitled  "An  act  to  aid  in  the  con- 

(94)  Simmons  v.  City  of  Toledo,  8  Ohio  C.  C.  R.  535. 

(95)  Block  v.  Milwaukee  Street  Railway  Company,  89  Wis. 
371, 1895;  27  L.  R.  A.  365;  61  N.  W.  1101. 

(96)  Julia  Bldg.  Assn.  v.  Bell  Telephone  Co.,  13  Mo.  App. 
477,  1883. 


7O  CONFLICTING  USES  OF  ELECTRICITY. 

struction  of  telegraph  lines,  and  to  secure  to  the  govern- 
ment the  use  of  the  same  for  postal,  military  and  other 
purposes."  The  Richmond  and  Southern  Bell  Telephone 
and  Telegraph  Company  contended  that  it  might  use  the 
streets  of  Richmond  irrespective  of  the  city's  consent  or 
even  against  it.  The  Supreme  Court  of  the  United  States 
construed  the  act  however,  to  subject  companies  formed 
under  it  to  reasonable  police  regulations  of  cities  and 
States.  It  was  also  intimated  that  the  act  quoted  had  no 
application  to  telephone  companies  whose  business  is  that 
of  electrically  transmitting  articulate  speech,  between  dif- 
ferent points.97 

47.    Does  the  electric  light  facilitate  travel? 

A  question  has  arisen  in  Rhode  Island  that  may  modify 
the  position,  both  of  street  railways  and  telegraph  and 
telephone  companies.  It  was  suggested  there,  that  an 
electric  light  company  may  be  considered  the  holder  of  a 
dominant  franchise,  its  purpose  being  to  light  the  streets 
and  thus  facilitate  public  travel.  Should  this  view  pre- 
vail, the  comfortable  position  of  street  railway  companies 
might  be  disturbed,  and  the  uncomfortable  position  of  the 
telephone  and  telegraph  companies  might  be  rendered  still 
more  uncomfortable.98 

The  question  of  how  far  an  electric  light  pole  consti- 
tutes a  servitude  upon  the  highway,  was  discussed  in  that 
case  as  follows :  "We  are  not  inclined  to  say,  however, 
that  they  do  not  encumber  because  they  are  placed 
as  they  are,  but  only  that  it  does  not  follow 
that  they  encumber  because  they  are  so  placed. 

(97)  Richmond  v.  Southern  Bell  Telephone  &  Telegraph  Co., 
174  U.  S.  761,  1899. 

(98)  Taggart  v.  Newport  Street  Railway  Company,  16  R.  I. 
668,  1890;  19  Atlantic  326. 


CONFLICTING  USES  OF  ELECTRICITY.  7 1 

Take,  for  instance,  a  lamp  post  or  an  electric  light  pole. 
It  is  slightly  in  the  way,  and,  if  it  served  no  useful  pur- 
pose in  regard  to  the  street  might  justly  be  deemed  to 
encumber  it.  But  it  supports  a  lamp,  or  an  electric  light, 
which  illuminates  the  street  at  night,  and  so  improves  the 
street  for  its  proper  uses.  It  is  not,  therefore,  an  encum- 
brance in  any  proper  sense  of  the  word." 

This  decision  must  not  be  considered  as  standing  alone, 
for  it  had  been  held  prior  to  that  time,  that  a  telegraph 
pole  erected  by  a  railroad  company  within  its  location  for 
the  purposes  of  its  railroad,  to  increase  the  safety  and 
efficiency  thereof,  does  not  constitute  an  additional  servi- 
tude, but  is  only  a  legitimate  development  of  the  easement 
originally  acquired.1 

48.    The  doctrine  of  Rylands  v.  Fletcher. 

Let  us  now  see  how  far  the  principles  of  the  case  of  Ry- 
lands v.  Fletcher,2  the  leading  English  case  on  the  subject 
of  liability  for  injuries  wrought  by  dangerous  agents  which 
one  keeps  upon  his  land  and  permits  to  escape,  apply. 
The  wrong  done  by  the  defendant,  a  mill-owner,  consisted 
in  maintaining  on  his  land  a  reservoir  of  .water,  admitted- 
ly a  proper  use  to  make  of  land.  The  water  escaped, 
without  negligence  on  the  part  of  the  mill-owner,  and 
flooded  the  mines  of  the  complainant,  the  lessee  of  the 
mines  on  the  adjoining  property.  Two  principles  were 
necessarily  involved  in  the  decision  of  the  cause : 

i.  A  landowner  may  put  his  land  to  any  of  its  ordin- 
ary uses  without  incurring  liability  for  any  mischief  inci- 

(99)  Taggart  v.  Newport  Street  Railway  Co.,  16  R.  I.  668, 
1890;  (19  Atlantic  326.) 

(1)  Western  Union  Telegraph  Co.  v.  Rich,  19  Kans.  517, 
(1878.) 

(2)  Rylands  v.  Fletcher,  L.  R.  3  H.  L.  C.  330, 1868. 


72  CONFLICTING  USES  OF  ELECTRICITY. 

dentally  wrought,  provided  he  is  guilty  of  no  malice  nor 
negligence. 

2.  A  landowner  who  brings  upon  his  land  anything 
which  would  not  naturally  come  upon  it,  which  is  dan- 
gerous in  itself,  and  productive  of  harm  if  uncontrolled, 
is  liable  for  any  harm  done,  whether  negligently  or  not. 

The  doctrine  of  this  case  is  really  one  of  the  landmarks 
of  legal  development.  For  it  suggested  a  test  of  liability 
that  is  really  fundamental.  Without  wandering  too  far 
afield,  let  us  apply  the  analysis  of  that  case  to  problems  of 
the  sort  under  discussion.  When  a  corporation,  or  an  in- 
dividual stores  electricity,  (which  all  of  the  cases  agree, 
is  an  agent  so  manifestly  dangerous,  that  one  who  uses 
it  is  almost  an  insurer  that  no  harm  will  result),  upon  his 
premises,  it  or  he  does  it  for  his  own  profit  or  pleasure. 
Suppose  then,  for  any  reason,  that  it  escapes  beyond  con- 
trol, what  answer  is  it  to  his  innocent  neighbor,  whose 
property  it  destroys,  whether  he  was  or  was  not  guilty  of 
neglect  ? 

The  principles  of  Rylands  v.  Fletcher  apply  in  England 
in  all  cases  where  a  dangerous  agent  has  been  permitted 
to  escape.  A  vicious  dog,  gunpowder,  or  any  similarly 
dangerous  object  are  instances  of  things  that  by  their 
very  nature  compel  their  owners  or  keepers  to  assume  a 
relation  of  insurance  toward  the  rest  of  the  world.  Now, 
it  happens  that  at  first  the  American  courts  repudiated 
the  doctrines  of  Rylands  v.  Fletcher,  and  adopted  the  gen- 
eral principle  that  wherever  harm  is  caused  by  the  use  of 
an  object,  whether  dangerous  per  se,  or  not,  he  is  liable 
for  the  consequences  only  where  he  had  been  negligent 
in  failing  to  control  his  agent.8 


(3)  See  the  Rule  in  Rylands  v.  Fletcher,  by  Prof.  Francis  H. 
Bohlen,  University  of  Pennsylvania  Law  Review  and  American 
Law  Register,  Vol.  59. 


CONFLICTING  USES  OF  ELECTRICITY.  73 

But  certainly  in  cases  where  electricity  escapes  and  pro- 
duces injury  by  conduction,  by  electrolysis  or  otherwise, 
it  seems  that  the  rule  of  Rylands  v.  Fletcher  will  be  ap- 
plied in  all  its  strictness.  The  case  of  Peoria  Waterworks 
Company  v.  Peoria  Railway  Company,4  discussed  here- 
inafter, seems  to  be  typical  of  the  general  legal  view  to- 
ward injuries  of  this  kind. 

49.    Contrast  of  English  and  American  principles. 

The  decision  of  cases  of  conflicting  uses  of  electricity 
in  England  will  generally  differ  from  the  rules  discussed 
above,  by  reason  of  (i)  The  fact  that  the  doctrine  of 
Rylands  v.  Fletcher  is  not  generally  accepted  in  America, 
even  if  applicable  to  such  a  case.  (2)  The  questions  of 
relative  value  of  franchises  and  of  the  dominant  use  of  the 
highway  have  not  been  considered  except  in  the  Cana- 
dian cases. 

The  English  court  will  therefore  apply  the  doctrines 
of  Rylands  v.  Fletcher,  but  will  say  perhaps,  that  those 
doctrines  will  not  protect  one  who  uses  an  apparatus  of 
such  delicate  construction  that  a  powerful  electric  current 
will  injure  it.  The  reasoning  is  not  altogether  clear.  If 
the  principles  of  Rylands  v.  Fletcher  were  applicable  at 
all,  they  should  protect  an  owner  of  a  telephone  as  well 
as  the  owner  of  a  mine.  If  the  telephone  must  be  remod- 
eled, the  expense  of  the  change  should,  on  this  principle, 
be  borne  by  the  railway  company.  And  such  in  fact  was 
the  doctrine  of  the  earlier  cases.  But  inasmuch  as  under 
the  decisions,  it  is  held  that  the  performance  of  an  act  in 
pursuance  of  a  statutory  authority  protects  the  doer  of  it 
from  liability  for  the  maintenance  of  a  nuisance,  the  result 
reached  is  almost  the  same  as  that  reached  in  the  United 


(4)     Peoria  Waterworks  Company  v.  Peoria  Railway  Com- 
pany, 181  Fed.  Rep.  990,  1004  (1910). 


74  CONFLICTING  USES  OF  ELECTRICITY. 

States.  It  is  interesting  to  contrast  the  reasoning1  used  in 
the  two  classes  of  cases,  by  which  the  same  conclusion 
is  reached.  The  English  doctrine  is : 

(a)  The  nuisance  if  authorized  by  statute  is  not  en- 
joinable. 

(i)  Unless  negligence  appear  in  the  exercise  of  the 
franchise. 

(b)  Injury  to  a  delicate  trade  apparatus,  such  as  a 
telephone  unnecessarily  so  constructed,  is  not  actionable. 

The  American  doctrine  is: 

1.  The  principles  of  Rylands  v.  Fletcher  do  not  apply. 

2.  The  escape  of  electricity  from  the  rails  is  not  a 
nuisance  per  se,  and  is  damnum  absque  injuria,  unless 
negligence  is  shown  in  its  use. 

3.  The  railway  company  has  a  dominant  right  to  the 
use  of  the  street  and  whatever  change  is  necessary,  must 
be  made  by  the  telephone  company. 

It  will  be  seen  that  the  legal  effect  of  i  and  (a)  of  the 
English  doctrine  is  precisely  the  same  as  that  of  2  and  (a) 
of  the  American  doctrine,  and  that  (b)  of  the  English 
doctrine  operates  in  effect  as  does  3  of  the  Ameri- 
can principles.  For  to  say  one  is  liable  for  the  escape  of 
a  dangerous  agent  unless  its  use  be  authorized  by  statute, 
is  the  same  as  saying  that  a  corporation  holding  the  fran- 
chise to  use  the  agent  cannot  be  held  for  its  escape  in 
ordinary  use;  and  that  the  rule  as  to  dangerous  agents 
does  not  apply,  (b)  of  the  English  doctrine  corresponds 
to  3  of  the  American  principles,  for  the  effect  of  holding 
that  the  use  of  a  delicate  apparatus  is  not  entitled  to  pro- 
tection is  equivalent  to  holding  that  of  the  railway  fran- 
chise dominant  and  placing  the  burden  of  change  on  the 
telephone  company.  Analysis  will  disclose  that  the  re- 
fusal of  relief  to  the  telephone  company  is  maintainable, 
if  at  all,  only  on  the  American  theory. 


CONFLICTING  USES  OF  ELECTRICITY.  75 

There  is  no  basis  for  applying  the  doctrine  of  Rylands 
v.  Fletcher;  a  person  authorized  to  put  his  property  or 
apparatus  in  a  public  street  not  being  a  landowner  in  such 
a  sense  as  to  make  the  holder  of  other  franchises,  or  the 
public  generally,  an  insurer  of  his  property — he  is  en- 
titled only  to  protection  against  unlawful  invasion.  But, 
having  applied  the  principle  to  such  a  case,  the  exception 
of  delicate  trade  instruments,  unnecessarily  so  constructed 
is  an  anomaly.  Under  this  reasoning,  the  mine  owner 
should  have  kept  the  entrance  to  his  mine  galleries  water 
tight,  and  there  would  have  been  no  doctrine  of  Rylands 
v.  Fletcher. 


CHAPTER  VIII. 

ADJUSTMENT  ON  EQUITABLE  PRINCIPLES.     SUMMARY. 

50.  The  equitable  treatment  of  conflicting  uses. 

51.  Relief  where  a  railway  unnecessarily  interferes. 

52.  What  kind  of  relief  may  be  sought. 

53.  The  street  railway  is  a  burden  on  country  highways. 

54.  The  discharge  of  electricity  into  the  earth  as  a  nuisance. 

55.  Summary  of  principles. 

50.    The  equitable  treatment  of  conflicting  uses. 

In  the  case  of  Cumberland  Telegraph  and  Telephone 
Company  v.  The  United  Electric  Railway  Company,5 
the  court  sought  an  equitable  adjustment  of  the  problem 
presented  where  the  territory  of  an  existing  telephone 
company  is  invaded  by  a  street  railway  company. 

The  telephone  company  had  established  its  lines  and 
conducted  a  satisfactory  business,  using  the  earth  as  a 
return  circuit,  until  the  advent  of  the  street  railway.  The 
usual  conflict  of  the  electric  currents  followed.  The 
telephone  company  was  finally  obliged  to  protect  its  ser- 
vice by  the  installation  of  the  McCluer  device.  In  the 
case  under  discussion  it  was  found  as  a  fact  that  the 
railway  company  which  was  operated  as  a  single  trolley 
system,  also  made  use  of  the  earth  as  a  return  circuit. 
The  injuries  complained  of  were  due  to  induction  as  well 
as  conduction. 

The  injury  due  to  induction,  it  was  found,  could  be 
avoided  by  eliminating  the  parallelism  of  the  two  systems, 
and  this  could  only  be  done  at  a  reasonable  expense,  by 

(5)  Cumberland  Telegraph  and  Telephone  Co.  v.  The  United 
Electric  Railway  Company,  93  Tenn.  492,  1894;  29  S.  W.  104; 
27  L.  R.  A.  236,  1894. 

76 


ADJUSTMENT  ON  EQUITABLE  PRINCIPLES.  ?/ 

the  telephone  company.  The  telephone  company  did  this 
at  an  expense  of  $856.30. 

The  injury  due  to  conduction  was  eliminated  by  the 
telephone  company  by  installation  of  the  McCluer  device, 
at  an  expense  of  $3,660.58. 

The  telephone  company  sued  to  recover  the  damages 
thus  sustained  and  the  court  allowed  a  recovery. 

It  is  believed  that  this  decision  represents  the  trend  of 
the  sounder  legal  thought  upon  the  subject. 

The  court  said:  "There  is  no  necessary  conflict  be- 
tween the  rights  and  franchises  of  these  companies.  There 
is  not  any  unavoidable  repugnancy  between  the  statutes 
upon  which  they  respectively  rely.  The  electric  railway 
plant  can  be  operated,  under  proper  limitations  as  to  dis- 
tance and  apparatus,  without  causing  injury  to  telephone 
plants  by  conduction.  This  fulfills  the  defendant's  grant 
without  trenching  upon  the  pre-existing  rights  of  plain- 
tiff. If  defendant  seeks  to  have  a  more  beneficial  use  of 
its  plant  by  an  invasion  or  use  of  plaintiff's  property,  it  is 
just  that  compensation  should  be  made." 

The  question  of  how  far  the  contention  of  either  party 
to  a  controversy  of  this  kind  that  it  might  exclude  the 
other  from  discharging  electricity  into  the  earth,  that  is 
to  say,  use  the  earth  as  a  return  circuit,  amounts  to  a 
claim  of  a  monopoly  in  the  use  of  the  earth  as  a  return 
circuit,  was  considered,  and  in  the  writer's  opinion,  con- 
clusively answered.  It  was  said:  "It  is  insisted  by  de- 
fendant that  plaintiff  cannot  recover  the  damages  caused 
by  conduction  except  upon  the  theory  that  it  has  the  right 
of  the  exclusive  use  of  the  whole  earth  for  electric  pur- 
poses. A  monopoly  of  the  earth's  use  for  any  purposes, 
or  by  any  person,  is  of  course,  inadmissible.  The  plain- 
tiff, however,  repudiates  this  ambitious  and  extravagant 
claim,  and  insists  that  its  demand  is  the  more  modest  and 


78  CONFLICTING  USES  OF  ELECTRICITY. 

reasonable  one  for  exclusive  use  of  electricity  upon  its 
own  premises,  in  an  authorized  and  non-hurtful  manner, 
without  injurious  disturbance  from  non-hurtful  electric 
conditions  caused  by  the  defendant's  acts." 

The  court,  having  summarized  the  facts  to  the  effect 
that  both  parties  were  using  the  earth  as  a  return  circuit, 
and  remarking  that  in  the  operation  of  the  defendant's 
plants,  large  and  turbulent  artificial  currents  of  the  elec- 
trical fluid  were  generated  and  poured  into  the  streets  be- 
yond defendant's  control,  found  as  a  fact  that  the  abnor- 
mal currents  were  to  be  found  doing  injury  upon  private 
property  of  the  plaintiff  and  its  subscribers.  It  was  found 
that  the  injury  by  conduction  could  be  obviated  at  an  ex- 
pense which  entailed  no  great  hardships  upon  either  party. 

The  conclusion  of  the  court  was  that  the  plaintiff  had 
the  right  to  the  protection  of  the  courts  in  the  adjustment 
of  its  property,  franchises,  easements  and  the  ability  to 
use  property,  which  though  intangible,  have  value,  and 
are,  equally  with  tangible  property,  entitled  to  the  recog- 
nition and  protection  of  the  courts.  "If  plaintiff's  claim, 
that  contemplates  no  more  than  a  lawful  and  non-hurtful 
use  of  its  own  property,  shall  be  characterized  as  a  de- 
mand for  the  monopoly  of  the  whole  earth,  what  shall  be 
said  of  defendant's  larger  demand  for  a  hurtful  use  not 
only  of  the  streets,  but  of  private  property  for  half  a  mile 
on  either  side?  The  plaintiff's  request  is  'Let  me  alone  in 
that  use  or  application  of  electricity  upon  my  own  prem- 
ises, that  causes  no  harm  or  disturbance  to  any  one  any- 
where.' The  defendant's  command  is :  'Get  out  of  my 
way !'  to  all  feebler  electrical  enterprises  that  may  have  the 
misfortune  to  come  within  the  range  of  its  power." 

"The  plaintiff  proposes  an  adjustment  of  conflicting 
claims  with  defendant  by  the  rule  embodied  in  the  en- 
lightened maxim,  sec  utere,  etc.,  while  defendant  insists 


ADJUSTMENT  ON  EQUITABLE  PRINCIPLES.  79 

upon  the  application  of  that  ruder  maxim,  'Might  makes 
right.'  If  defendant  could  succeed  in  its  contention, 
there  can  be  little  doubt  that  the  unjust  rule  thus  estab- 
lished would  some  day  'return  to  plague  the  inventor.' 
What  protection  has  this  defendant  in  the  enjoyment  of 
its  vast  properties,  if  it  can  be  deprived  of  the  power  to 
operate  them  by  some  younger,  but  more  robust,  child 
of  invention  that  shall  hereafter  obtain  mastery  in  the 
electric  world?  Is  not  the  non-injurious  use  of  electricity 
the  only  safe  and  just  basis  for  the  adjustment  of  the  con- 
flicting claims  of  electrical  inventions  and  enterprises? 
What  different  basis  than  this  can  be  arbitrarily  estab- 
lished? Where  shall  the  line  be  drawn  between  those 
electrical  enterprises  that  must  take  care  of  the  artificial 
currents  of  electricity  generated  by  them,  and  those  that 
shall  not  be  required  to  do  so?"  (Writer's  italics.) 

"To  concede  defendant's  claim  is  to  give  to  it  a  hurtful 
use  of  plaintiff's  property,  and  at  the  same  time  to  deny 
plaintiff  the  harmless  use  of  its  own.  The  argument  that 
assumes  that  plaintiff  is  claiming  the  whole  earth  as  a 
return  circuit,  and  therefore  appropriating  a  common 
right  to  its  exclusive  use,  because  'plaintiff's  portion  of 
the  earth  cannot  be  isolated  and  separated  electrically 
from  the  balance  of  the  earth,'  is  one  which,  if  pressed  to 
its  logical  results,  would  work  a  revolution  in  the  law  as 
to  the  use  of  the  earth,  the  water,  and  the  air.  How,  if 
this  argument  be  sound,  can  any  one  insist  that  the  air 
and  water,  that,  by  the  operation  of  natural  law,  visit  his 
premises  and  support  life,  shall  not  be  rendered  noisome 
and  impure  by  the  injurious  acts  of  his  neighbor?  It  is 
impossible  that  his  portion  of  the  air  or  water  can,  in  ad- 
vance, be  'isolated  and  separated  from  the  balance.'  Is 
not  the  right  to  the  use  of  air  and  water  as  'common'  as 
that  to  use  electricity,  If  the  right  to  the  non-hurtful  use 


8O  CONFLICTING  USES  OF  ELECTRICITY. 

upon  one's  own  premises,  without  injurious  disturbance 
from  others,  of  air  or  water  or  electricity,  is  made  to  de- 
pend upon  his  ability  to  isolate  and  separate,  in  advance, 
his  portion  of  these  elements  from  the  'balance,'  that 
right  resolves  itself  into  an  'airy  nothing.' 

"The  suggestion  that  plaintiff,  in  using  the  earth  as 
its  'return  circuit,'  appropriates  and  uses  electrically  the 
properties  intervening  between  its  'exchange'  and  its  sub- 
scribers' stations  in  any  other  than  a  lawful  manner,  is, 
as  we  think,  based  upon  a  misconception. 

"The  plaintiff's  use  of  electricity  causes  no  disturbance 
electrically  upon  these  intervening  properties  or  else- 
where, and  affords  no  inducing  cause,  there  or  elsewhere, 
for  the  invasion  of  its  property  by  defendant's  artificial 
currents. 

"The  plaintiff  uses  the  intervening  or  other  outside 
properties  for  electrical  purposes  in  no  other  sense  than 
it  uses  abutting  lands  as  a  part  of  the  framework  of  the 
earth  to  support  its  own ;  or  uses  the  channel  of  the  stream 
upon  adjoining  lands  that  conveys  the  water,  by  natural 
flow,  to  its  own ;  or  uses  the  law  of  gravitation  that  causes 
the  water  to  flow  toward  its  land  instead  of  in  the  oppo- 
site direction.  The  plaintiff  does  not  assert  the  right  to 
an  injurious  use  of  electricity,  even  upon  its  own  prem- 
ises. 

"The  doctrine  that  reason  sanctions  and  justice  approves, 
as  it  appears  to  us,  is  that  the  lawful,  harmless,  and  accus- 
tomed use  upon  one's  land,  alike  of  water,  air  or  elec- 
tricity, cannot  be  lawfully  obstructed  or  impaired  by  the 
injurious  act  of  another,  attended  with  such  disturbance 
of  natural  and  existing  conditions,  and  consequent  loss, 
as  that  caused  by  conduction  in  this  case,  especially  when 
the  party  performing  the  injurious  act,  had  the  power  to 
obviate  and  remedy  the  injury  or  loss,  without  greater 


ADJUSTMENT  ON  EQUITABLE  PRINCIPLES.  8 1 

sacrifice,  comparatively,  than  is  required  of  defendant  in 
this  case  to  remedy  conduction. 

"It  is  not  material  that  the  injurious  act  is  done  upon 
the  premises  of  one  other  than  the  injured  party — as, 
if  the  channel  of  a  stream  is  cut  upon  adjoining  lands, 
and  the  water  diverted,  or  the  waters  are  there  arrested 
in  their  regular  flow  and  then  turned  loose  in  flooding 
quantities." 

Three  elements  of  injury  to  the  telephone  company  by 
the  construction  and  operation  of  the  street  railway  ap- 
peared in  this  case,  viz:  i.  Of  conduction.  2.  Of  in- 
duction. 3.  Of  conduction  resulting  in  injury  to  prop- 
erty of  the  telephone  company  situated  upon  its  private 
property.  The  relief  granted  to  the  telephone  company 
was  based  upon  grounds  that  furnish  food  for  thought 
and  that  seem  to  offer  a  fair  basis  for  the  user  of  both 
franchises.  The  principles  involved  may  be  summarized 
as  follows: 

1.  The  operation  of  a  street  railway  in  the  street, 
with  any  incidental  inconvenience  or  damage  to  objects 
in  the  street,  is  a  legitimate  use  of  the  streets  within  the 
purpose  of  their  original  dedication,  but. 

a.  This  principle  does  not  extend  to  property  rights 
outside  the  streets. 

2.  Telephone  and  other  companies  may  not  obstruct 
the  operation  of  street  railways. 

3.  Both  telephone  and  railway  companies  must  exer- 
cise their  powers  with  a  careful  and  prudent  regard  for 
the  other's  rights. 

4.  If  the  "ordinary  use"  of  a  railway  franchise  be 
such  as  to  injure  the  telephone  franchise  unnecessarily, 
the  cost  of  any  change  necessitated  must  fall  upon  the 
street  railway. 

5.  The  railway  company  is  not  liable  for  injuries  to 
6 


82  CONFLICTING  USES  OF  ELECTRICITY. 

the  lines  of  the  telephone  company  on  the  same  streets, 
due  to  induction,  or  conduction. 

6.  The  railway  company  is    liable  for  damages    in- 
flicted upon  the  telephone  exchange  located  upon  private 
property  outside  of  the  streets,  by  conduction. 

7.  If  the  telephone  company  can  protect  its  lines  by 
the  adoption  of  the  McCluer  device,  (a  large  copper  wire, 
attached  at  both  ends  to  the  out-going  (from  its  exchange) 
telephone  wires),  the  cheapest  effective  remedy  for  injury 
by  conduction,  and  capable  of  being  applied  alone  by  the 
telephone  company,  it  is  the  right  and  duty  of  the  tele- 
phone company  to  resort  to  the  device,  and  it  may  re- 
cover the  cost  of  installing  it  from  the  railway  company. 

51.    Relief  where  a  railway  unnecessarily  interferes. 

This  decision  proceeds  from  a  point  of  view,  widely 
divergent  from  those  heretofore  considered.  It  was,  in 
the  first  place,  an  action  at  law,  to  recover  the  expense  to 
which  the  telephone  company  had  been  put  to  render  its 
lines  immune  from  invasion  by  the  electric  currents  of  the 
railway ;  it  was  not  a  bill  in  equity  to  restrain  the  opera- 
tion of  the  railway.  In  the  second  place,  the  inquiry  of 
the  court  was  directed  to  the  question,  "Had  the  railway 
company  unnecessarily  constructed  its  lines  so  that  in- 
jury might  result?" 

This  latter  query  will  repay  investigation.  It  will  be 
recalled  that  in  the  case  of  the  injury  done  to  the  sub- 
marine cable,  the  thought  of  the  court  was  that  although 
the  employer  of  a  dangerous  agent  was  liable  for  injuries 
resulting  from  its  use,  that  did  not  protect  the  owner  of 
a  delicate  instrument  unnecessarily  so  constructed.  This 
is  apparently  putting  the  cart  before  the  horse.  If  anyone 
is  operating  his  franchise,  and  does  so  in  such  a  manner 
as  to  injure  another,  the  natural  inquiry  would  seem  to 


ADJUSTMENT  ON  EQUITABLE  PRINCIPLES.  83 

be,  not  whether  the  instruments  of  the  latter  were  delicate 
or  not,  but  whether  or  not  the  former  could  avoid  the  in- 
jury. If  he  could,  but  the  expense  of  rendering  the  ap- 
paratus of  the  latter  immune  were  less,  he  should  be  made 
to  bear  the  expense.  It  seems  almost  as  if  many  doctrines 
that  impress  one  as  anomalous  in  our  modern  legal  prin- 
ciples proceed  from  endeavoring  to  establish  that  one  who 
is  injured  might  not  have  been  injured  had  he  built  his 
apparatus  differently  instead  of  discovering  what  would 
have  happened  had  the  assailant  exercised  his  right  with 
more  regard  for  the  rights  of  others.  A  man  builds  his 
house  with  steel  columns  and  girders.  Electrolysis  de- 
stroys the  beams.  He  is  told  the  injury  would  not  happen 
to  a  concrete  house.  He  builds  of  concrete.  Someone  sets 
up  a  new  franchise  involving  the  use  of  acids  which  might 
attack  the  concrete  and  the  house  crumbles  again.  Still 
no  remedy,  for  those  acids  do  not  attack  traprock  and  so 
on,  ad  infinitum. 

52.    What  kind  of  relief  may  be  sought. 

The  form  of  action  by  which  redress  is  sought  is  im- 
portant. If  the  telephone  company  seek  redress,  by  pray- 
ing for  an  injunction,  it  must  generally  fail,  for  the  rail- 
way franchise  is  superior  and  no  monopoly  can  be  had 
in  the  earth.  But  if  the  telephone  company  sue  for  the 
damages  inflicted,  it  has  in  many  jurisdictions  in  the 
United  States,  a  right  of  recovery,  upon  principles  estab- 
lished in  the  case  last  discussed. 

The  telephone  company  should  bring  to  the  attention 
of  the  railway  company,  the  injuries  which  it  is  unneces- 
sarily inflicting,  their  origin,  and  the  remedy,  whether  it 
be  by  the  use  of  additional  copper  on  the  part  of  the  rail- 
way company  or  that  of  the  telephone  company. 
If  the  railway  company  insist  that  the  adjust- 


84  CONFLICTING  USES  OF  ELECTRICITY. 

ment  should  be  made  by  the  telephone  company,  it  is 
rational  to  put  upon  the  railway  company  the  cost  of  the 
change.  This  is  not  true  of  injuries  due  to  induction,  for 
which  redress  is  based  upon  different  principles,  but  it 
seems  that  this  rule  should  be  applied  in  all  cases  of  in- 
juries due  to  conduction.  For,  it  is  generally  conceded 
that  the  only  reason  for  which  a  railway  company  permits 
the  current  to  escape  into  the  earth,  is  the  saving  of  cop- 
per. In  other  words,  although  there  is  a  simple  device 
by  means  of  which,  at  a  not  inordinate  expense,  the  rail- 
way franchise  could  be  exercised  without  prejudice  to  the 
rights  or  property  of  other  franchise  holders,  the  com- 
pany chooses  to  save  the  copper,  at  the  expense  of  the 
holders  of  other  franchises.  It  becomes  necessary  then 
for  the  telephone  company  for  example,  to  get  rid  of  this 
troublesome  force  which  the  railway  company  turns 
loose,  which  it  does,  by  itself  using  the  copper  wire  neces- 
sary to  take  hold  of  the  electricity  and  return  it  to  the 
dynamos  of  the  trolley  system.  It  is  really  a  very  short 
step  from  saying  that  the  railway  company  is  inflicting 
injury  unnecessarily  to  saying  that  it  is  guilty  of  negli- 
gence in  the  exercise  of  its  franchises.  And  that,  under 
any  theory  of  the  use  of  the  highway  or  the  use  of  the 
franchise  means  liability  to  the  extent  of  the  damage  in- 
flicted. Besides  this,  there  is  a  grave  question,  whether 
or  not  the  injury  due  to  conduction  is  a  taking  of  the 
telephone  company's  property  for  which  compensation 
must  be  made.  As  to  its  apparatus  located  on  property 
elsewhere  than  in  the  streets,  it  is  undoubtedly  a  taking 
and  in  some  jurisdictions  certainly  a  recovery  in  damages 
may  be  had. 

This  may  become  clear  upon  consideration  of  cases 
upon  analogous  facts.  Under  ordinary  circumstances 
two  corporations  exercising  similar  franchises  have  super- 


ADJUSTMENT  ON  EQUITABLE  PRINCIPLES.  85 

iority  of  right  according  to  priority  of  grant  and  estab- 
lishment. If  interests  conflict,  an  adjustment  will,  if  pos- 
sible, be  made  by  a  court  of  equity.  If  the  two  franchises 
cannot  be  exercised  together,  the  one  which  is  later  in 
point  of  time,  must  give  way.  But  avoidable  injury  will 
be  restrained;  negligent  injury  will  be  restrained;  wanton 
injury  will  be  restrained.  If  the  wires  of  the  one  company 
conflict  with  those  of  the  other,  the  court  will  compel  the 
company  guilty  of  the  interference  to  change  the  location 
of  its  wires,  irrespective  of  cost. 

This  creates  a  situation  very  closely  resembling  one  in 
which  the  conflicting  franchises  are  those  of  the  railway 
and  of  the  telephone  company.  One  franchise  is  superior 
to  the  other,  and  an  adjustment  is  reached  by  which  the 
aggressor  is  compelled  to  use  his  franchise  in  such  a  way 
as  to  cause  no  loss  or  destruction  to  the  others.  It  is  im- 
possible to  accept  the  conclusion  that  unnecessary  injury 
can  be  inflicted  without  regard  for  the  rights  of  the  party 
injured. 

53.    The  street  railway  is  a  burden  on  country  highways. 

While  the  proposition  holds  true  in  general  that  a  street 
railway  may  not  be  considered  in  a  legal  sense,  a  burden 
upon  the  highways  of  a  city  or  borough,  or  upon  high- 
ways that  may  be  termed  urban,  this  is  not  applicable  to 
suburban  conditions.  From  which  the  principle  may  be 
derived  that  a  street  railway  is  not  a  burden  upon  city 
streets,  but  it  is  certainly  a  burden  upon  country  roads.6 

This  decision  would  not  be  of  so  high  an  interest  to 
the  present  discussion,  had  the  conclusion  reached  af- 
fected only  the  right  of  abutting  landowners  to  question 
the  railway  right  to  construct  its  line.  But  the  plaintiff 

(6)  Pennsylvania  R.  R.  Co.  v.  Montgomery  County  Passen- 
ger Railway,  167  Pa.  62 ;  31  Atlantic  468,  1895. 


86  CONFLICTING  USES  OF  ELECTRICITY. 

in  that  case  was  a  railroad  corporation,  and  an  injunc- 
tion was  granted  at  its  initiative.  Apparently,  therefore, 
regarding  the  question  from  the  standpoint  of  interfering 
uses  of  electricity,  any  property  or  franchise  holder  ag- 
grieved by  the  operation  of  a  street  railway  in  the  country 
on  highways  beyond  municipal  limits,  would  not  be  called 
upon  to  meet  the  proposition  that  the  railway  had  a  super- 
ior franchise.  In  other  words,  the  rights  of  the  parties 
could  be  decided  upon  a  basis  of  legal  rights  and  not  upon 
one  of  relativity  of  franchises.  It  must  be  remarked  in 
this  connection  that  the  tendency  of  modern  opinion  is 
against  permitting  invasion  of  the  rights  of  others  because 
of  statutory  authority.  The  tendency  is  marked  to  recon- 
cile clashing  rights  or  franchises  as  far  as  possible,  and  to 
repress  the  harmful  features  of  invasion,  even  where  a 
statute  authorizes  it.  The  proposition  legally,  that  the 
legislature  in  granting  a  franchise,  must  be  taken  to  have 
contemplated  all  harm  that  might  result  from  its  opera- 
tion rests  upon  a  doubtful  foundation  at  best  and  the 
New  York  cases,  at  all  events,  seem  decidedly  opposed  to 
this  view  of  the  law.  They  have,  as  we  have  seen  above, 
refused  to  sanction  the  discharge  of  smoke,  etc.,  by  ele- 
vated railroads  without  compensation  to  persons  affected, 
although  it  might  easily  be  argued  that  the  legislature 
must  have  known  that  an  engine  could  not  be  operated 
without  making  smoke.7 

54.    The  discharge  of  electricity  into  the  earth  as  a  nuisance. 

This  leads  to  the  consideration  whether,  if  the  dis- 
charge of  smoke  into  the  air,  in  quantities  such  as  to  pro- 
duce injury  be  a  nuisance  and  actionable,  why  is  not  the 
discharge  of  electricity  into  the  earth  in  such  quantities 

(7)  Hussner  v.  Brooklyn  City  R.  R.,  114  K  Y.  437,  1889;  21 
N.  E.  1002,  1889. 


ADJUSTMENT  ON  EQUITABLE  PRINCIPLES.  87 

as  to  produce  injury  actionable  for  the  same  reasons.  And 
we  shall  find  when  we  consider  the  cases  bearing  .upon  the 
right  of  recovery  for  the  direct  results  of  the  escape  of 
electricity  such  as  electrolysis  that  the  courts  have  adopted 
this  view.  While  it  is  a  general  legal  principle  that  "no 
man  is  answerable  in  damages  for  the  reasonable  exercise 
of  a  right  when  it  is  accompanied  by  a  cautious  regard  for 
the  rights  of  others,  when  there  is  no  just  ground  for  the 
charge  of  negligence  or  unskilfulness,  and  when  the  act 
is  not  done  maliciously,"8  this  principle  is  subject  to  many 
modifications.  And  one  of  the  principle  exceptions  is 
that  no  one  in  the  exercise  of  his  own  rights,  however 
carefully  performed,  can  with  immunity,  injure  another 
to  such  an  extent  that  it  amounts  to  a  confiscation  of  his 
property.9 

In  the  case  of  Cogswell  v.  The  New  York,  New  Haven 
and  Hartford  Railroad  Company,10  it  was  queried, 
"whether  the  legislature  can  authorize  a  railroad  corpora- 
tion to  maintain  an  engine  house,  under  circumstances, 
which  if  maintained  by  an  individual,  would,  by  the  com- 
mon law,  constitute  a  nuisance  to  private  property  without 
providing  compensation.  But  if  this  should  be  conceded, 
nevertheless,  the  statutory  sanction  which  will  justify  an 
injury  by  a  railroad  corporation  to  private  property  with- 
out making  compensation  therefor,  and  without  the  con- 
sent of  the  owner,  must  be  express  or  given  by  clear  and 
unquestionable  implication  from  the  powers  expressly 
conferred,  so  that  it  can  fairly  be  said  that  the  legislature 
contemplated  the  doing  of  the  very  act  which  occasioned 

(8)  Panton  v.  Holland,  17  Johns  (N.  Y.)  99, 1819. 

(9)  Radcliff  v.  Mayor,  4  N.  Y.  195, 198,  (1850). 

(10)  Cogswell  v.  The  New  York,  New  Haven  and  Hartford 
Railroad  Company,  163  N.  Y.  10,  1886 ;  8  N.  E.  537. 


88  CONFLICTING  USES  OF  ELECTRICITY. 

the  injury;  it  may  not  be  presumed  from  a  general  grant 
of  authority." 

This  leads  us  at  once  to  the  distinction  between  cases 
of  electrical  interference  due  to  induction  and  to  those 
due  to  conduction.  As  to  injuries  inflicted  by  a  railway 
or  other  electrical  company  upon  another  electrical  com- 
pany using  a  lower  voltage  by  induction,  this  in  normal 
cases  is  an  injury  resulting  from  the  proper  exercise  of 
an  electrical  franchise,  and  gives  rise  to  no  action  unless 
wantonly  done  or  unless  done  by  placing  wires  in  undue 
proximity  to  each  other.  But  if  the  company  injured 
could  protect  itself  by  the  use  of  proper  modern  devices, 
it  has  no  standing  to  require  its  antagonist  to  bring  its 
own  plant  up  to  a  higher  degree  of  efficiency  than  it  is 
willing  to  provide  for  itself. 

55.    Summary  of  principles. 

We  are  now  in  a  position  to  summarize  the  authorities 
thus  far  discussed. 

The  street  railway  is  a  dominant  franchise  in  city 
streets.  It  is  a  burden  upon  country  highways. 

The  construction  and  operation  of  the  street  railway 
cannot,  in  normal  cases  be  enjoined  by  any  other  franchise 
holder,  merely  because  the  exercise  of  the  franchise  is 
harmful  to  it. 

Telephone  and  telegraph  companies  may  procure  a 
certain  degree  of  immunity  from  disturbance  through  in- 
duction by  using  the  McCluer  device  or  the  complete  me- 
tallic circuit.  Such  a  company  therefore  can  obtain  no 
relief  from  the  courts  unless  it  can  show  that  it  is  main- 
taining its  plant  at  a  state  of  efficiency  consistent  with 
modern  development  in  electrical  apparatus.  The  Cana- 
dian cases  suggest  a  test  in  this  connection  that  seems 
final.  A  company  not  making  use  of  such  appliances  is 


ADJUSTMENT  ON  EQUITABLE  PRINCIPLES.  89 

certain  to  be  disturbed  sooner  or  later  by  some  electrical 
franchise,  street  railway,  electric  light  or  electric  power. 
It  cannot  hope  to  exclude  forever  all  other  franchises 
from  its  territory  merely  because  it  fears  disturbance 
when  it  has  voluntarily  kept  its  own  apparatus  at  a  low 
state  of  efficiency. 

All  direct  trespasses  may  be  restrained.  All  wanton 
trespasses  may  be  restrained.  It  is  probable  that  the  di- 
rect injury  of  apparatus  or  property  by  escaping  currents 
of  electricity  is  actionable  both  in  England  and  the  United 
States. 

The  location  of  wires  and  other  apparatus  will  almost 
invariably  be  controlled  in  such  a  manner  as  to  harmonize 
the  operation  of  both  franchises. 

It  is  evident,  however,  that  the  courts  have  carried  to 
its  extreme  limit  the  doctrine  that  the  railway  company, 
as  holding  a  franchise  in  furtherance  of  public  travel,  can- 
not be  held  liable  for  injuries  produced  by  induction.  The 
effect  of  giving  the  railway  company,  and  the  railway 
company  alone,  immunity  from  responsibility  for  damage 
caused  by  escaping  electricity  is  to  give  to  it  a  monopoly 
in  the  use  of  the  earth  as  a  return  circuit.  The  true  rule 
would  seem  to  be  that  the  railway  company  should  itself 
adopt  a  complete  metallic  circuit  in  some  way,  efficient 
to  prevent  the  escape  of  electricity  from  the  rails.  This 
would  produce  comparative  equality  in  the  relations  of 
the  parties.  Interference  by  means  of  induction  could 
then  be  eliminated  by  having  poles  and  wires  located  a 
suitable  distance  from  each  other. 

The  means  to  be  adopted  by  a  railway  company  or 
other  company  to  eliminate  interference  is  a  matter  not 
for  the  courts,  but  for  the  legislature. 


PART   II. 
THE   LAW    RELATING  TO 

ELECTROLYSIS 


CHAPTER  IX. 

ELECTROLYSIS. 

56.  Electrolysis — The  problem.    Definitions.    The  Peoria  Case. 

57.  Statement  of  facts. 

58.  Determination  of  existence   of  electrolysis.     Tracing  the 

cause. 

59.  Notice  to  defendants. 

60.  Kapidity  of  electrolytic  action. 

61.  Elimination  of  possible  explanations. 

62.  Differences  in  potential. 

63.  Suggested  remedies. 

64.  Railways  negative  return  system. 

65.  Summary  of  facts. 

66.  Conclusions  of  law. 

67.  Electrolysis  a  permanent  and  continuing  injury. 

68.  License  to  operate  a  railway  does  not  justify  injury  to 

others. . 

69.  The  injury  results  from  defendant's  acts. 

70.  The  injury  is  actionable. 

71.  The  remedy. 

72.  Investigation  of  possible  remedies. 

73.  Metal  consumed  by  electrolysis. 

74.  Bonding  as  a  remedy. 

75.  Difference  of  potential  necessary  to  produce  electrolysis 

76.  Definition  of  electrical  terms. 

77.  Electrolysis  defined. 

78.  Court  cannot  specify  kind  of  remedy. 

79.  Injunction  to  restrain  injury  by  electrolysis. 

80.  Principles  of  general  application. 

81.  Electricity  a  dangerous  agent. 

91 


Q2       THE  LAW  RELATING  TO  ELECTROLYSIS. 

82.  English  cases  of  electrolysis. 

83.  Public  and  private  duties  of  public  service  corporations. 

84.  Municipality  may  restrain  electrolysis. 

85.  Faulty  construction  must  be  remedied. 

86.  Principles  established. 

87.  Summary  of  the  law  relating  to  electrolysis. 

56.    Electrolysis — The  problem.    Definitions.    The  Peoria  Case. 

The  legal  remedy  for  injuries  due  to  electrolysis  is  one 
of  the  most  recent  developments  of  the  law  of  electricity, 
or  more  broadly,  of  the  law  of  torts.  The  number  of 
cases  is  very  limited  and  the  subject  has  had  extended 
discussion  in  but  one  case.  It  is  certain  that  this  branch 
of  the  law  is  in  its  infancy,  but  the  cases  to  be  discussed 
disclose  an  unusual  uniformity  of  principle.  The  injury 
is  usually  the  basis  of  an  action  whether  done  to  a 
private  individual  or  to  the  holder  of  another  franchise. 
It  is  difficult,  however,  to  conceive  of  a  problem  in  which 
the  facts  could  by  any  possibility  be  more  complicated. 

The  Word  electrolysis  has  been  given  a  judicial  defini- 
tion. In  the  case  of  Peoria  Water  Works  Company  v. 
The  Peoria  Railway  Company,11  electrolysis  is  defined 
thus :  "Electrolysis  is  the  decomposition  of  a  metal  solu- 
tion in  water,  liquid  ammonia,  etc.,  accompanied  by  de- 
composition of  the  water  in  the  oxygen  and  hydrogen  or 
of  a  mass  of  molten  metal,  by  having  an  electric  current 
pass  through  it."  The  solution  or  metal  mass  is  known 
as  the  electrolyte. 

In  that  case  a  bill  was  filed  by  the  water  company  for 
an  injunction  against  the  injury  of  the  water  mains  by 
electrolysis.  The  plaintiff  was  granted  authority  by  the 
city  of  Peoria  to  operate  the  waiter  works  of  the  city,  to 
enlarge  and  improve  the  system  and  to  supply  water  to 


(11)     Peoria  Water  Works  Company  v.  The  Peoria  Railway 
Company,  181  Fed.  Rep.  990, 1910. 


ELECTROLYSIS.  93 

the  city  of  Peoria  for  a  term  of  thirty  years.  The  city  also 
agreed  to  adopt  ordinances  to  protect  the  water  company 
in  the  safe  and  unmolested  exercise  of  the  franchise,  and 
the  license  thereby  granted.  To  make  the  matter  clear, 
we  may  summarize  the  position  thus :  The  water  com- 
pany had  an  absolute  franchise  from  the  city  to  operate 
its  water  works,  and  to  lay  and  maintain  its  pipes  in  the 
city  streets.  And  it  was  guaranteed  by  the  city  the  safe 
and  unmolested  exercise  of  its  franchise. 

57.    Statement  of  facts. 

The  defendant  was  a  street  railway  company,  incor- 
porated by  the  State  of  Illinois,  and  it  operated  all  the 
street  railway  lines  in  the  city  of  Peoria.  All  of  its  cars 
were  operated  by  electricity,  and  it  too  had  a  franchise 
from  the  municipality  of  Peoria  giving  it  the  right  to 
occupy  the  streets  of  the  city  and  to  propel  its  cars  by 
electricity.  So  far  as  priority  of  right  appears  in  the  case, 
the  plaintiff  water  company  had  its  mains  in  the  streets 
of  Peoria  before  the  defendant  railway  company,  or  in 
fact  any  railway  company  had  occupied  the  city  streets. 

The  defendants  operate  their  railway  lines  by  the  over- 
head single  trolley  system.  Electricity  generated  in  the 
powjer  station  of  the  railway  company  and  used  to  operate 
the  motors  under  the  cars,  is  conveyed  to  them  by  an 
overhead  wire  and  a  single  arm  or  pole  attached  to  the 
car  and  carrying  a  contact  wheel  which  runs  along  and 
underneath  the  overhead  wire.  The  current  passes  from 
this  wire  down  through  the  wheel  and  arm  to  and  through 
the  motors,  thence  to  the  wheels  of  the  cars  and  from 
them  to  the  car  tracks  or  rails.  The  current  then  finds 
its  way  back  to  the  generator  in  the  power  station,  and  in 
accordance  with  an  established  law  of  electricity,  in  so 
doing  follows  the  path  of  least  resistance. 


94       THE  LAW  RELATING  TO  ELECTROLYSIS. 

The  railway  tracks  of  the  defendant's  railway,  are 
necessarily  uninsulated  from,  and  in  electric  contact  with, 
the  earth,  although  in  the  business  portion  of  the  city  of 
Peoria,  the  streets  upon  which  such  tracks  are  laid  are  for 
the  most  part,  paved  with  a  brick  pavement  laid  upon  a 
concrete  foundation.  A  part  of  the  return  electric  cur- 
rent, after  going  through  the  car  motors,  to  the  tracks, 
finds  its  way  from  the  rails  through  the  ground  to  the 
water  pipes  of  the  complainant,  and  makes  use  of  them 
as  a  part  of  its  circuit  back  to  the  generator  in  the  power 
station.  This  current  (in  compliance  with  the  law  above 
referred  to)  escapes  from  these  pipes  into  the  moist  earth 
which  sets  up  the  electrical  action  which  causes  the  de- 
composition of  the  metal  pipes,  which  is  similar  to  the 
action  which  takes  place  in  an  electroplating  bath. 

58.    Determination  of  existence  of  electrolysis.     Tracing  the 
cause. 

The  soil  in  and  around  Peoria  in  which  the  water  pipes 
and  mains  of  the  water  company's  system  are  laid,  is  of 
a  moist,  sandy  character,  and  often  furnishes  a  path  of 
comparatively  low  resistance  to  the  electric  current. 

Samples  of  soil  which  were  taken  from  the  immediate 
vicinity  of  water  company's  service  pipes,  showed  traces 
of  lead,  which  had  been  deposited  there  by  the  action  of 
the  electric  current.  And  the  metal  from  these  water  pipes 
is  frequently  found  deposited  in  the  form  of  some  of  its 
compounds  along  the  path  of  the  current  from  the  pipe 
to  the  rails  of  the  railway  companies. 

Samples  were  analyzed  from  pits  in  complainant's  water 
pipes  and  from  the  soil  in  the  vicinity  of  such  pipes.  The 
materials  which  came  from  the  pits  in  the  cast  iron  water 
pipes  were  found  to  be  the  products  of  decomposition  of 
the  metal  in  the  pipes,  resulting  from  the  defendant's  cur- 


ELECTROLYSIS.  95 

rent  passing  through  the  salts  in  the  surrounding  soil. 
This  electrolytic  action  destroyed  many  lead  service  pipes 
of  the  complainant.  It  had  resulted  at  the  time  the  action 
was  brought  in  pitting  and  weakening  many  of  the  pipes 
and  mains  of  its  water  distributing  system. 

In  the  months  of  May  and  June,  1894,  an  extended 
examination  of  the  water  piping  system  of  the  complain- 
ant was  made  by  electrical  experts  and  more  than  1,000 
electrical  measurements  taken,  which  showed  that  at  that 
time  there  was  in  every  instance  a  difference  of  potential, 
indicating  flow  of  electric  current  between  rails  and  pipes. 
This  difference  of  potential  or  electrical  pressure  was 
found  to  vary  in  different  cases  from  a  fraction  of  a  volt 
up  to  45  volts.  The  measurements  showed  that  in  some 
places  the  flow  of  current  was  from  the  rails  into  the  pipes, 
and  in  others  from  the  pipes  into  the  rails.  Actual  tests 
made  at  that  time  showed  a  loss  of  metal  in  single  service 
pipes  of  over  a  pound  of  metal  per  month,  the  observations 
indicating  that  many  other  pipes  were  deteriorating  at 
the  same  rate.  Excavations  were  made  in  a  number  of 
places  for  the  purpose  of  inspecting  the  pipes  to  ascertain 
their  actual  condition.  Many  of  these  pipes  were  found 
to  be  wasting  away,  and  there  was  evidence  that  rapid 
electrolytic  action  was  taking  place. 

59.    Notice  to  defendant. 

On  April  6,  1894,  the  receiver  of  the  Peoria  Water 
Company,  who  was  in  possession  and  operating  the  water 
works  plant,  caused  notification  to  be  made  to  the  Cen- 
tral Railway  Company  "that  the  Peoria  Water  Company 
has  been  for  a  long  time  past,  and  is  now,  daily  suffering 
and  sustaining  great  injury  and  damage  to  its  lead  and 
iron  pipes  and  other  underground  property  in  the  streets 
and  alleys  of  Peoria ;  that  it  is  put  to  great  labor,  expense, 


96       THE  LAW  RELATING  TO  ELECTROLYSIS. 

and  trouble  in  making  and  keeping  up  repairs  on  its  said 
pipes  by  reason  of  the  improper  and  unlawful  use  by  you 
of  the  ground  as  a  return  conductor  for  electrical  cur- 
rents, and  by  the  illegal,  careless,  and  improper  use  of 
electrical  currents  generated  by  you."  Similar  notice  was 
given  to  the  mayor  and  common  council  of  the  city  of 
Peoria  on  or  about  November  24,  1893,  December  8, 

1893,  December  19,  1893,  January  2,  1894,  and  on  Feb- 
ruary 7,  1898,  which  notices  called  upon  the  city  for  pro- 
tection under  the  water  works  ordinance  against  dam- 
ages which  the  notices  alleged  were  then  being  suffered. 

60.  Rapidity  of  electrolytic  action. 

Another  examination  of  the  water  piping  system  owned 
and  operated  by  the  complainant,  was  made  in  the  early 
part  of  1898  by  the  same  experts  who  made  the  examina- 
tion in  1894.  An  electrical  survey  was  made  with  a  view 
to  a  comparison  between  the  conditions  existing  in  1894 
and  1898.  The  experts  found  and  reported  that  the  de- 
struction was  taking  place  more  rapidly  in  1898  than  in 

1894,  and  that  it  was  being  caused  by  electrical  currents 
generated  by  the  defendants. 

61.  Elimination  of  possible  explanations. 

During  the  progress  of  the  taking  of  defendants'  tes- 
timony in  this  case,  it  appeared  from  the  evidence  that 
some  of  complainant's  iron  gate  boxes  were  located  under 
the  rails  of  defendants'  track,  and  it  was  contended  by 
defendants'  counsel  and  experts  that  enough  current  was 
diverted  by  reason  of  the  proximity  of  these  gate  boxes 
to  account  for  all  the  electrolysis  claimed  by  the  complain- 
ant. It  was  contended  by  complainant  and  its  experts  that 
in  no  case  did  any  actual  contact  exist  between  the  gate 
box  and  the  rail  except  in  instances  while  a  car  was  pass- 


ELECTROLYSIS.  97 

ing  over  a  box.  Nevertheless,  35  of  these  gate  boxes 
were  taken  out  and  replaced  by  vitrified  tile  pipe,  a  non- 
conductor of  electricity.  In  other  cases  the  gate  boxes 
were  entirely  removed,  and  not  replaced  because  not 
needed.  This  change  left  no  gate  boxes  within  one  foot 
from  the  rails.  Examination  and  tests  made  by  both  par- 
ties after  this  change  in  the  gate  boxes  showed  large  quan- 
tities of  electric  current  from  defendants'  system  still 
traveling  upon  complainant's  pipes. 

62.    Differences  of  potential. 

In  June,  1899,  and  after  considerable  improvement 
had  been  made  by  the  railway  companies  in  the  way  of 
heavier  rails  and  better  bonding,  and  an  improved  return 
feeder  system,  another  electrical  survey  was  made  of  the 
existing  conditions  between  the  rails  of  the  railway  com- 
panies and  the  water  mains  of  the  complainant.  This  sur- 
vey showed  that  a  large  volume  of  current  was  still  flow- 
ing between  the  rails  of  the  defendants  and  the  pipes  of 
the  complainant,  the  volt  meter  showing  10  different  read- 
ings of  10  volts  and  over,  the  highest  found  being  35 
volts,  rails  positive  to  pipes. 

A  difference  in  potential  of  the  fraction  of  a  volt  will 
cause  electrolysis,  and  from  the  conditions  hereinabove 
found  and  stated  the  ultimate  destruction  of  complain- 
ant's pipes  by  the  currents  of  electricity  allowed  to  escape 
from  defendants'  system  is  a  question  only  of  time  and 
pressure. 

The  evidence  discloses  no  known  method  by  which  the 
complainant  by  its  own  action  can  protect  its  water  dis- 
tributing system  of  pipes  and  mains  from  the  electric 
currents  of  the  defendants'  single  trolley  railways. 

The  evidence  discloses  no  complete  remedy  for  the  in- 
jury to  these  water  pipes  except  the  entire  removal  of 
7 


98  THE  LAW  RELATING  TO  ELECTROLYSIS. 

electric  currents  from  the  water  mains.  Such  removal  is 
impossible  so  long  as  the  return  currents  of  the  electric 
railways  are  grounded  or  in  electrical  contact  with  the 
earth.  The  other  methods  which  have  been  suggested  by 
the  defendants  in  this  case  do  not  in  practice,  and  can- 
not prevent  the  escape  of  a  portion  of  the  currents  into 
the  ground  and  water  pipes. 

63.    Suggested  remedies. 

The  defendants  can  prevent  the  injury  by  controlling 
the  current  generated,  by  means  of  the  use  of  a  complete 
metallic  circuit,  insulated  from  the  rails  and  ground,  pro- 
viding a  channel  for  the  return  of  the  current  to  the  gen- 
erator as  perfect  as  the  channel  that  is  provided  to  supply 
the  power  along  the  street  for  use.  In  the  District  of 
Columbia,  outside  of  the  City  of  Washington,  the  double 
(trolley  has  been  and  is  being  installed  by  a  number  of 
roads  under  acts  of  Congress  providing,  in  substance,  that, 
where  the  overhead  trolley  is  used,  it  must  be  the  double 
trolley,  and  also  that  no  portion  of  the  electrical  circuit 
shall  under  any  circumstances  be  allowed  to  pass  through 
the  earth,  and  that  neither  pole  nor  any  dynamo  furnish- 
ing power  to  the  line  shall  be  grounded.  This  action  by 
Congress  was  caused  by  the  interference  of  the  electric 
current  of  the  single  trolley  railways  with  underground 
metallic  structures  in  Washington  and  the  surrounding 
territory.  The  overhead  double  trolley  system  has  been 
used  in  Cincinnati,  O.,  for  ten  years,  and  has  been  shown 
by  experience  during  that  time  to  be  practical,  economi- 
cal, and  satisfactory,  and  the  evidence  shows  that  by  its 
use  in  this  case  the  return  current  might  be  carried  back 
to  the  dynamo  without  coming  in  contact  with  the  earth 
at  all,  and  the  difficulty  from  electrolysis  thus  be  complete- 
ly overcome.  The  original  cost  for  installation  of  the 


ELECTROLYSIS.  99 

double  trolley  system  is  considerably  more  than  for  the 
single  trolley  system.  While  the  evidence  in  the  record 
as  to  the  exact  cost  of  changing  the  defendants'  system 
from  the  single  to  the  double  trolley  is  conflicting  and 
unsatisfactory,  it  is  sufficient  to  determine  the  fact  that 
such  cost  would  not  be  so  unreasonable  and  excessive  as 
to  make  it  impossible  for  the  defendants  to  adopt  the 
double  trolley  system. 

64.  Railways  negative  return  system. 

The  defendants'  negative  return  system  is  as  good  as 
or  better  than  the  average  used  by  overhead  single  trolley 
electric  street  railways  in  cities  of  the  size  of  Peoria,  and 
the  defendants  have  done  all  that  can  be  done  under  the 
present  state  of  the  art,  so  long  as  the  single  trolley  is 
used,  to  care  for  the  safe  return  of  their  electric  currents. 
Notwithstanding  this,  it  clearly  appears  from  the  evi- 
dence that  a  portion  of  the  returning  currents  continues 
to  escape  to  complainant's  piping  system  and  necessarily 
causes  injury,  and  threatens  ultimate  destruction  thereto. 

At  least  25  miles  of  complainant's  water  mains  are  laid 
under  streets  paved  with  permanent  and  expensive  pave- 
ment, and  practically  no  access  can  be  had  to  these  mains 
except  when  made  necessary  by  actual  breaks  in  the  pipes. 
The  fact  of  injury  to  these  mains  in  this  territory  from 
the  electric  current  of  defendants  is  capable  of  demon- 
stration and  has  been  demonstrated  in  this  case,  though 
it  is  impossible  to  determine  the  exact  extent  of  the  in- 
jury to  the  whole  system  at  any  given  time. 

65.  Summary  of  facts. 

The  ultimate  facts  disclosed  by  the  evidence  may  be 
briefly  summarized  as  follows:  (i)  The  injury  com- 
plained of  exists.  (2)  The  injury  is  permanent  and  con- 


IOO      THE  LAW  RELATING  TO  ELECTROLYSIS. 

tinuing.  (3)  The  injury  has  been  and  is  being  caused  by 
the  defendants.  (4)  The  complainant  can  do  nothing  to 
prevent  the  injury.  (5)  The  defendants  can  prevent  it 
by  the  use  of  the  overhead  double  trolley  system,  or  by 
any  system  which  provides  a  completely  insulated  metallic 
circuit  for  the  electric  current.  (6)  The  overhead  double 
trolley  system,  though  more  expensive  to  install,  has  been 
demonstrated  by  use  and  experience  to  be  as  safe,  eco- 
nomical, and  satisfactory  in  its  operation  as  the  single  trol- 
ley system. 

66.     Conclusions  of  law. 

Upon  this  state  of  facts,  the  court  reached  the  follow- 
ing conclusions  of  law : 

(1)  The  court  has  jurisdiction  over  the  subject-mat- 
ter in  this  proceeding. 

(2)  In  Illinois  there  is  vested  in  municipal  corpora- 
tions the  power  of  exclusive  control  over  the  streets,  and 
in  many  cases  a  fee-simple  title  to  the  streets,  and,  under 
the  power  of  exclusive  control  over  the  streets,  it  is  well 
settled  by  the  decisions  of  the  state  courts  that  the  muni- 
cipal authorities  may  do  anything  with  or  allow  any  use 
of  streets,  which  is  not  incompatible  with  the  ends  for 
which  they  are  established  and  that  use  for  the  purpose  of 
water  pipes  is  among  those  for  which  the  use  of  streets 
may  be  granted,  and  that  the  laying  of  water  pipes  under 
ground  is  much  less  of  an  obstruction  and  interference 
with  the  ordinary  purposes  of  a  street  than  the  laying  and 
maintaining  of  a  railway  track  upon  its  surface. 

(3)  In  view  of  the  law  of  Illinois  relating  to  the  use 
of  streets,  which  has  become  a  "rule  of  property,"  and 
therefore  will  be  followed  by  the  federal  courts,  it  can- 
not be  held  that  the  use  of  the  streets  for  water  pipes  is 
in  any  sense  subservient  to  the  use  for  electric  street  rail- 


ELECTROLYSIS.  IOI 

way  purposes,  assuming  that  both  uses  have  been  granted 
by  the  municipality  in  the  proper  exercise  of  its  authority. 

(4)  Both  parties  to  this  suit  acquired  their  rights  in 
the  streets  by  a  grant  under  statutory  authority  from  the 
city  of  Peoria  by  ordinance  passed  by  common  council. 
Each  occupies  the  streets  by  legal  authority.  Each  is  per- 
forming a  duty  to  the  public.    Each  has  money  and  prop- 
erty invested  in  its  system  and  plant,  a  considerable  por- 
tion of  which  in  each  case  occupies  the  streets  by  such 
legal  authority.    Both  are  entitled  to  the  equal  protection 
of  the  laws  against  the  invasion  of  their  rights  and  prop- 
erty by  others. 

67.  Electrolysis  a  permanent  and  continuing  injury. 

(5)  The  injury  which  is  being  done  to  complainant's 
water  pipes  by  the  defendants'  currents  of  electricity  is 
not  a  mere  incidental  injury  or  inconvenience,  but  is  a  per- 
manent, continuing  injury  to  a  legal  right,  which  will, 
in  effect,  if  the  injury  is  permitted  to  go  on,  ultimately 
result  in  the  absolute  destruction  of  complainant's  plant 
and  property.     This  would  amount  to  nothing  less  than 
the  taking  away  from  complainant  of  the  use  of  its  prop- 
erty by  the  defendant  street  railway  companies  which,  if 
it  be  done  under  their  license  from  the  city,  authorizing 
them  to  propel  their  cars  by  electric  motive  power,  would 
be  a  taking  of  private  property  for  public  use.    The  con- 
stitution of  Illinois  provides  that  "private  property  shall 
not  be  taken  or  damaged  for  public  use  without  just  com- 
pensation." 

68.  License  to  operate  a  railway  does  not  justify  injury  to 

others. 

(6)  The  license  from  the  city  of  Peoria  to  the  de- 
fendants, while  it  grants  the  right  to  them  to  lay  their 


IO2      THE  LAW  RELATING  TO  ELECTROLYSIS. 

tracks  and  "propel  their  cars  by  electric  motive  power" 
does  not  assume  to  give  the  "right"  to  so  construct  or 
operate  their  systems  as  to  damage  the  property  of  oth- 
ers who  have  equal  rights  to  the  use  and  enjoyment  of 
their  own  property.  A  fortiori,  this  is  true  because  of 
the  fact  that  it  is  possible  for  the  defendants  to  so  con- 
struct and  operate  their  railways  by  electric  motive  power 
as  not  to  interfere  with  or  injure  the  water  pipes  of  the 
complainant.  But  even  if  such  license  did  not  assume  to 
grant  the  "right"  to  operate  in  the  manner  in  which  the 
defendants  are  operating,  regardless  of  injury  to  others, 
the  law  would  not  tolerate  such  use  because  of  the  provis- 
ions of  the  Constitution  above  quoted. 

69.    The  injury  results  from  defendant's  acts. 

(7)  The  injury  complained  of  in  this  case  is  the  di- 
rect and  immediate  result  of  defendants'  acts — as  much 
so  as  if  the  defendants  were  to  deliberately  uncover  and 
destroy  by  any  other  means,  the  water  pipes  of  complain- 
ant. The  defendants,  by  taking  the  necessary,  reasonable 
precautions  in  operating  their  railways,  would  be  able  to 
avoid  the  injury,  and,  this  being  true,  their  failure  to 
take  such  precautions,  must  be  considered  as  negligence. 
It  is  as  much  the  duty  of  the  defendants,  then,  to  refrain 
from  injuring  the  property  of  the  complainant  by  the  one 
method  as  it  is  by  the  other.  The  complainant  is  as  much 
entitled  to  protection  against  the  injury  from  defendants' 
electric  currents  negligently  allowed  to  stray  upon  its 
property,  as  it  would  be  to  protection  from  the  wanton 
destruction  of  its  property  by  any  other  direct  means 
which  might  be  employed  by  the  defendants.  The  maxim, 
"Sic  utere  tuo  ut  alienum  non  laedas,"  applies  even  under 
the  strictest  limitations  of  the  rule  which  have  ever  been 
applied  by  the  courts  in  any  case. 


ELECTROLYSIS.  1 03 

70.  The  injury  is  actionable. 

(8)  Although  the  defendants  are  operating  their  rail- 
ways under  ordinances  from  the  city,  granting  them  a  li- 
cense to  propel  cars  by  electric  motive  power,  and  in  so 
doing  are  interfering  with  the  property  and  water  pipes 
of  complainant,  such  interference  and  injury  is  not  dam- 
num  absque  injuria  because :     ( i )  It  is  possible  for  the 
defendants  to  so  operate  their  railways  by  electric  motive 
power  as  not  to  injure  the  complainant's  property.     (2) 
It  is  impossible  by  any  known  method  for  the  complain- 
ant to  protect  its  property  from  such  injury.  (3)  Where 
there  are  two  methods  of  accomplishing  a  legal  result  and 
one  method  will  work  an  injury  to  another  and  the  other 
method  will  not,  it  is  the  duty  of  the  person  doing  the 
thing  to  use  that  method  which  will  not  result  in  injury 
to  such  other  person.     (4)     The  failure  on  the  part  of 
the  defendants  to  observe  such  duty  constitutes  negli- 
gence, and,  when  it  results  in  damage  to  another,  such 
damage  is  actionable. 

(9)  The  injury  found  to  be  going  on  in  this  case  is 
the  direct  consequence  of  the  unnecessary  and  wrongful 
acts  of  the  defendants  in  accomplishing  a  legal  result — 
that  is,  the  propulsion  of  cars — and,  unless  the  defendants 
are  protected  by  their  license  from  the  city,  they  are  liable 
to  the  complainant  for  such  injury.    These  acts,  unneces- 
sary and  wrongful  in  themselves,  are  not  rendered  law- 
ful by  the  ordinance  granting  the  use  of  the  streets  for 
the  purpose  of  propelling  cars  by  electric  motive  power, 
and,  inasmuch  as  they  work  "hurt,  inconvenience,  and 
damage"  to  the  complainant,  they  constitute  a  nuisance 
which  is  actionable  at  the  suit  of  the  injured  party. 

71.  The  remedy. 

(10)  The    injury    complained    of   being    actionable, 


IO4      THE  LAW  RELATING  TO  ELECTROLYSIS. 

there  can  be  no  doubt  of  the  power  of  the  court  to  grant 
some  remedy.  The  damage  already  done  is  chargeable 
to  the  defendants,  so  far  as  such  damage  is  capable  of 
being  definitely  ascertained,  the  defendants  should  be 
held  liable  in  a  suit  at  law.  But  a  suit  and  recovery  at 
law  would  not  stop  the  injury  which  is  and  must  neces- 
sarily be  continuous  under  existing  conditions.  The  very 
life  of  complainant's  plant  and  franchise  is  threatened. 
The  only  adequate  remedy  is  therefore  by  injunction  as 
prayed  in  the  petition.  The  special  master's  conclusion 
is  that  the  bill  and  evidence  make  a  case  of  equitable  jur- 
isdiction, and  that  an  injunction  should  be  issued  as 
prayed,  subject  to  such  reasonable  conditions  as  to  the 
court  may  seem  right. 

72.    Investigation  of  possible  remedies. 

The  special  master's  conclusions  having  led  to  a  full 
realization  of  the  difficulties  of  adjusting  the  rights  of  the 
parties  litigant,  the  case  was  again  referred  to  the  same 
master  for  the  purpose  of  developing  further  information 
on  certain  points  which  were  directed  to  an  ascertainment 
of  the  feasibility  of  remedying  the  conditions.  These 
points  were  as  follows : 

(a)  What  remedies  can  be  applied  to  substantially 
minimize  or  prevent  the  injury,  if  any,  to  complainant's 
water  distributing  mains  and  system  in  and  near  the  city 
of  Peoria,  111.,  by  the  return  electrical  currents  employed 
by  the  defendant  in  the  operation  of  its  street  railway 
lines  ip  said  city? 

(b)  The  relative  merits  of  the  single  overhead  trolley 
system  and  insulated  circuit  systems  of  operating  street 
railways,  with  relation  to  the  leakage  of  electrical  current, 
and  the    resulting  injury  to    the  underground    metallic 
structures  of  other  public  service  corporations  or  in  any 


ELECTROLYSIS.  1 05 

other  respect  material  to  the  issues  herein,  as  shown  by 
the  results  of  experience  or  otherwise,  since  the  closing 
of  the  proofs  in  this  case. 

(c)  What  are  the  means  now  employed  by  the  de- 
fendant herein  to  prevent  injury  to  the  underground  me- 
tallic structures  in  the  streets  of  Peoria  by  the  return  elec- 
trical current  of  the  defendant,  and  the  results  of  the 
means  so  employed. 

(d)  To  what  extent,  if  any,   have  the  distributing 
mains  of  the  complainant  company  located  in  the  public 
highways  in  the  city  of  Peoria  been  injured  or  destroyed 
by  the  return  current  of  the  defendant  company,  so  far 
as  shown  by  examination  made,  or  anything  occurring 
or  ascertained  since  the  closing  of  the  proofs  in  this  case 
before  the  special  master? 

(e)  What  improvements,  if  any,  have  been  made  by 
the  defendant  herein  in  its  electrical  return  system  since 
the  close  of  defendant's  evidence,  on  the  former  hearing 
before  said  special  master? 

These  queries  were  answered  as  follows : 
First.  In  March,  1908,  the  defendant  was  operating 
about  50  single  track  miles  of  railway  lines  in  the  city 
of  Peoria  and  vicinity.  The  rails  in  use  were  largely  of 
the  girder  type,  7  inches  high,  60  feet  long,  and  weighing 
80  pounds  per  lineal  yard.  On  the  streets  in  the  business 
parts  of  Peoria  these  rails  were  laid  on  hardwood  ties, 
the  latter  embedded  in  concrete,  and  the  space  between 
the  rails  and  between  the  tracks  paved  with  a  hard,  vitri- 
fied brick,  set  on  edge  so  as  to  bring  the  surface  of  such 
pavement  even  with  the  top  of  the  rails,  the  portion  of  the 
street  adjoining  said  tracks  being  also  paved  with  like 
material  in  a  similar  manner.  Defendant's  return  system 
at  the  same  time  consisted  of  its  rails,  bonded  at  each 


IO6      THE  LAW  RELATING  TO  ELECTROLYSIS. 

rail  joint  with  two  No.*  copper  wires,  in  a  manner  com- 
monly known  as  the  "channel  pin  bond."  At  the  time 
above  specified  the  defendant  was  engaged  in  the  applica- 
tion to  the  rail  joints  of  its  system  of  the  "brazed  bond," 
and  in  March,  1908,  the  latter  had  been  applied  to  the  rail 
joints,  but  it  is  no  more  efficient  in  that  respect  than  the 
welded  joint,  or  certain  other  methods  of  bonding,  which 
have  been  in  use  for  a  long  time.  Where  special  work 
existed  in  the  track  construction,  the  rails  and  tracks  were 
cross-bonded.  The  defendant  also  had  as  a  part  of  such 
return  system  about  six  miles  of  negative  overhead  re- 
turn wires  running  from  its  power  generating  station  to 
different  parts  of  the  system,  these  negative  returns  at 
the  terminals  being  connected  with  rail  and  tracks,  and 
at  the  power  house  with  the  negative  bus-bar  of  the 
dynamo.  A  considerable  portion  of  this  work  had  been 
done  since  the  close  of  defendant's  evidence  on  the  former 
hearing,  and  is  in  the  nature  of  an  improvement  to  the 
conductivity  of  the  return  system  in  the  way  of  heavier 
rails,  double  rail  bonds,  cross-bonding,  additional  nega- 
tive return  feeders,  and,  so  far  as  had  been  applied,  the 
brazed  bond ;  but  during  the  same  period  the  average  load 
on  defendant's  system  had  been  largely  increased,  prob- 
ably doubled,  and,  owing  to  this  increase,  and  the  fact 
that  the  large  interurban  cars  are  being  run  over  some  of 
the  tracks  in  Peoria,  it  is  more  difficult  to  prevent  the 
escape  of  electric  current  to  the  water  pipes  of  complain- 
ant. While  the  principal  purpose  of  such  improvement 
has  been  to  prevent  the  escape  of  the  current  from  de- 
fendant's system,  the  evidence  shows  that  notwithstand- 
ing the  means  so  employed  the  current  flow  upon  com- 
plainant's system  has  gradually  increased,  a  portion  of  the 
current  has  continued  to  escape  and  work  damage  and  in- 

*  The  report  gives  no  number. 


ELECTROLYSIS.  1 07 

jury  to  the  proximate  underground  metallic  structures, 
especially  to  the  complainant's  water  pipes. 

73.  Metal  consumed  by  electrolysis. 

Second.  Since  the  closing  of  proofs  on  former  hear- 
ing, the  complainant's  distributing  mains  in  many  in- 
stances have  been  injured,  and  in  some  rendered  useless, 
by  the  return  current  of  the  defendant  company.  In  these 
distributing  mains  since  1893  there  have  been  discovered 
joint  leaks  in  the  3O-inch  mains,  1 19;  in  the  2oinch  mains, 
4;  in  the  1 6-inch  mains,  43;  in  other  mains,  47.  Two 
breaks  have  occurred  in  the  3O-inch  mains,  and  9  in  the 
2O-inch  mains.  Electrical  surveys  made  as  late  as  March 
25,  1908,  showed  the  most  current  flowing  on  the  pipes 
in  and  about  the  places  where  the  greatest  number  of 
joint  leaks  and  breaks  occurred.  The  pittings  in  the 
mains  caused  by  flow  of  current  from  defendant's  system 
have  been  constantly  increasing  in  depth.  On  South  Ad- 
ams street,  where  the  depth  of  the  pitting,  according 
to  the  evidence  under  the  former  reference,  was  1-8  of 
an  inch,  in  March,  1908,  instances  were  found  where  the 
depth  of  pitting  was  55-100  of  an  inch  in  a  main,  the 
total  thickness  of  which  is  7-8  of  an  inch.  The  evidence 
appears  conclusive  that  these  pittings,  leaks,  and  breaks 
have  been  largely  caused  by  the  electric  current  escap- 
ing from  the  defendant's  railway  system. 

Third.  No  competent,  direct  evidence  was  offered  by 
either  party  on  said  question. 

74.  Bonding  as  a  remedy. 

Fourth.  The  defendant  offered  witnesses  who  testi- 
fied, in  substance  that  "all  danger  of  injury"  to  complain- 
ant's water  mains  and  system  from  electrical  currents 
generated  by  defendant  in  the  operation  of  its  street  rail- 


IO8      THE  LAW  RELATING  TO  ELECTROLYSIS. 

way  could  be  prevented  by  the  use  of  the  brazed  bond  on 
all  rail  joints  in  addition  to  the  present  bonding,  together 
with  proper  cross-bonding  and  "jumpers"  thoroughly 
connecting  all  rails  with  each  other,  in  all  special  work, 
and  proper  maintenance  of  overhead  negative  return  wires 
as  prescribed  in  said  testimony.  Some  of  these  same 
witnesses,  also,  on  cross-examination,  testified,  in  effect, 
that  the  plan  proposed  would  not,  and  could  not,  wholly 
prevent  the  escape  of  electric  current  from  defendant's 
system  to  the  water  system  of  complainant,  but  that  the 
portion  of  the  current  that  would  still  leave  the  rails 
would  be  so  small  and  so  distributed  along  complainant's 
system  as  to  do  no  damage  on  leaving  the  pipes.  Com- 
plainant's witnesses  testified  in  effect  that  the  plan  pro- 
posed as  aforesaid  would  not  prevent  the  escape  of  some 
current  and  could  not  prevent  the  injury,  and  that  any 
amount  of  electric  current  flowing  upon  and  off  the  water 
pipes  will  cause  injury  where  it  leaves  the  pipe  through 
moist  soil,  and  that  such  injury  is  directly  proportional  to 
the  amount  of  current  flowing  during  any  given  period, 
and  this  proposition  is  established  by  a  large  preponder- 
ance of  all  the  evidence. 

Fifth.  The  evidence  offered  on  this  re-reference,  and 
herewith  reported,  as  aforesaid,  fails  to  disclose  any 
method  which  will  completely  or  substantially  prevent  the 
injury  complained  of,  and  all  the  evidence  fails  to  disclose 
the  discovery,  since  the  hearing  under  the  previous  order 
of  reference  of  any  new  principle  or  fundamental  law  re- 
garding the  nature  and  effect  of  electric  currents  or  of 
any  new  method  of  preventing  the  escape  of  such  current 
different  in  principle  from  those  known  at  the  time  of  the 
former  hearing.  In  other  words,  the  evidence  of  this 
reference,  taken  as  a  whole,  tends  to  confirm  the  findings 


ELECTROLYSIS.  1 09 

and  conclusions  stated  in  this  special  master's  former  re- 
port, numbered  14,  15,  and  16,  which  are  as  follows: 

75.  Difference  of  potential  necessary  to  produce  electrolysis. 

(14)  A  difference  in  potentional  of  the  fraction  of 
a  volt  may  cause  electrolysis,  and  from  the  conditions 
hereinbefore  found  and  stated  the  ultimate  destruction  of 
complainant's  pipes  by  the  currents  of  electricity  allowed 
to  escape  from  defendant's  system  is  a  question  only  of 
time  and  pressure. 

(15)  The  evidence  discloses  no  known  method  by 
which  the  complainant  by  its  own  action  can  protect  its 
water  distributing  system  of  pipes  and  mains  from  the 
electric  currents  of  the  defendant's  single  trolley  railways. 

(16)  The  evidence  discloses  no  complete  remedy  for 
the  injury  to  these  water  pipes,  except  the  entire  removal 
of  electric  current  from  the  water  mains.    Such  removal 
is  impossible  so  long  as  the  return  Currents  of  the  electric 
railway  are  grounded  or  in  electrical  contact  with  the 
earth.     The  other  methods  which  have  been  suggested 
by  the  defendants  in  this  case  do  not  in  practice,  and 
cannot,  prevent  the  escape  of  a  portion  of  the  current  into 
the  ground  and  water  pipes. 

76.  Definition  of  electrical  terms. 

A  definition  of  some  of  the  terms  used  by  the  expert 
witnesses  and  by  the  master  in  his  report  is  necessary  to 
clearness  of  discussion. 

The  "C.  G.  S."  system.  Units  of  electrical  force  and 
volume  have  been  fixed  by  law  with  reference  to  what  is 
known  as  the  "centimetergram-second  system,"  generally 
referred  to  as  "C.  G.  S."  This  system  was  adopted  with 
reference  to  length,  expressed  by  the  centimeter  of  39-100 
inches,  mass,  expressed  by  the  gram,  weighing  about 


IIO  THE  LAW   RELATING  TO  ELECTROLYSIS. 

151-2  grains  avoirdupois,  and  time,  expressed  by  the  sec- 
ond. These  are  the  fundamental  units  of  scientific  work. 
Thus  the  unit  of  force  is  that  which,  when  acting  on  a 
body  weighing  one  gram,  will  accelerate  that  body  one 
centimeter  in  one  second.  All  electrical  measurements 
are  based  solely  on  this  force  unit,  and  the  electrical  units 
of  force,  resistance,  and  volume  have  been  defined  by  Con- 
gress with  reference  to  the  C.  G.  S.  system.  The  unit  of 
resistance,  called  the  "ohm,"  is  1,000,000,000  units  of  the 
C.  G.  S.  system.  The  unit  of  volume,  called  the  "ampere," 
is  one-tenth  unit  of  the  C.  G.  S.  system.  The  unit  of 
pressure,  called  the  "volt,"  is  that  electrical  force  which, 
when  steadily  applied  to  a  wire  or  other  conductor  having 
a  resistance  of  1,000,000,000  units  of  the  C.  G.  S.  system, 
will  produce  a  current  of  one-tenth  of  a  unit  per  second  of 
that  system.  And  the  unit  of  power  called  the  "  watt," 
equals  10,000,000  units  of  power  in  the  C.  G.  S.  system, 
or  one  ampere  times  one  volt. 

"Potential,  volt."  For  practical  purposes,  it  may  be 
said  that  a  dynamo  generates  electricity  and  sends  it  out 
over  the  lighting  wire  or  trolley  wire  at  a  pressure  repre- 
sented by  that  number  of  volts  indicated  by  the  work  done 
by  the  lights  or  street  cars,  expressed  in  watts,  kilowatts 
(1,000  watts),  or  watt  hours,  where  the  work  continues 
one  or  more  hours.  One  horse  power  is  746  watts  or  3-4 
kilowatts.  Volts  multiplied  by  amperes  gives  watts.  Thus 
no  volts  on  a  lighting  wire  carrying  one-half  ampere  of 
volume  creates  a  power  of  55  watts.  The  greater  pres- 
sure which  sends  the  current  out  on  the  circuit  over  the 
trolley  wire  and  back  through  the  rails,  ground,  and  water 
pipes  to  the  dynamo  is  known  as  "potential,"  which  may 
be  likened  to  a  head  of  water  in  a  dam.  When  the  cur- 
rent is  leaving  the  rails  and  moving  into  the  earth  and 
upon  the  pipes,  the  rails  are  said  to  be  positive  to  earth 


ELECTROLYSIS.  Ill 

and  pipes ;  and,  when  the  current  moves  from  the  pipes  to 
the  rails,  the  former  are  positive  to  the  latter.  All  the 
battery  or  dynamo  does  is  to  create  a  difference  of  poten- 
tial, or  difference  of  electrical  pressure,  between  two 
points  in  an  electrical  circuit.  The  unit  of  that  pressure 
is  the  volt,  equal  to  the  number  of  units  mentioned. 

77.    Electrolysis  defined. 

"Electrolysis"  is  the  decomposition  of  a  metal  solution 
in  water,  liquid  ammonia,  etc.,  accompanied  by  decomposi- 
tion of  the  water  into  oxygen  and  hydrogen,  or  of  a  mass 
of  molten  metal,  by  having  an  electric  current  passed 
through  it.  The  metals,  carbon,  and  pure  substances  gen- 
erally conduct  electricity  without  decomposition  what- 
ever, except  at  elevated  temperatures.  The  solution  or 
melted  mass  is  known  as  "electrolyte."  The  current  is 
introduced  to  and  taken  from  the  electrolyte  by  means  of 
strips  or  portions  of  metal  or  carbon  called  "electrodes," 
connected  with  wires  forming  part  of  the  electrical  cir- 
cuit; that  by  which  the  current  enters  being  known  as 
the  "anode,"  and  the  other  as  the  "cathode."  In  the  pro- 
cess of  electrolysis  minute  portions  of  the  metal  in  solu- 
tion, and  sometimes  of  the  metal  in  the  anode,  together 
with  the  hydrogen,  are  deposited  upon  the  cathode,  as  in 
silver  platings.  The  oxygen  goes  to  the  anode,  and  tends 
to  oxydize  it.  The  anode  is  sometimes  decomposed  in 
the  process  and  sometimes  not,  depending  on  its  composi- 
tion and  that  of  the  solution.  As  applied  to  water  pipes, 
electrolysis  is  the  stripping  off  of  small  particles  of  the 
iron  when  a  suitable  electrolytic  solution  is  present,  leav- 
ing the  carbon  of  which  the  pipe  is  partly  composed  intact. 
What  the  cathode  is  in  this  process  of  decomposition  does 
not  clearly  appear,  but  it  may  be  assumed  to  be  the  ad- 
joining water  pipe,  a  gas  pipe,  lead  water-service  pipe, 


112      THE  LAW  RELATING  TO  ELECTROLYSIS. 

street  car  rail,  or  some  metallic  deposit  in  the  soil ;  one  or 
more  of  these  being  part  of  the  circuit  of  the  current  oper- 
ating on  the  water  main,  and  flowing  toward  the  nega- 
tive side  of  the  dynamo  in  the  railway  power  station. 
Pure  water,  being  a  nonconductor  of  electricity,  can- 
not be  an  electrolyte,  but  readily  becomes  such  when  a 
portion  of  metal  is  dissolved  in  it,  as  copper  sulphate  (blue 
vitriol),  zinc  sulphate,  silver  nitrate,  iron  oxide  (rust), 
etc.  The  breaking  up  of  the  water  into  hydrogen  and 
oxygen  at  once  introduces  a  new  resistance  to  the  current, 
tending  to  put  an  immediate  end  to  electrolysis.  This  re- 
sistance, known  as  "polarization,"  may  be  overcome  in  a 
variety  of  ways,  among  others  by  applying  a  higher  volt- 
age or  potential  or  by  an  alternating  current.  The  oxygen 
going  to  the  water  pipe  from  which  the  current  is  passing 
oxidizes  or  rusts  the  pipe,  and  the  coating  of  rust  acts 
as  an  insulator,  tending  to  prevent  further  corrosion  of 
the  pipe  at  that  point. 

78.    Court  cannot  specify  kind  of  remedy. 

As  to  the  legal  decision  of  a  case  of  this  character,  it  has 
been  settled  that  no  specific  system  of  evading  injury  on 
the  part  of  the  railway  company  can  be  imposed  by  the 
court.12  The  reason  for  this  decision  is  that  prescribing 
a  definite  method  of  conducting  a  business  is  a  function 
of  the  legislature  and  not  of  the  courts.13 

A  court  of  chancery  is  not  any  more  than  is  a  court  of 
law,  clothed  with  legislative  power.  It  may  enforce  in 
its  own  appropriate  ways,  the  specific  performance  of  an 


(12)  Atchison  T.  &  S.  F.  R.  Co.  v.  The  Denver  &  N.  0.  R.  K, 
110  U.  S.  667,  (1884). 

(13)  Express  Cases,  117  U.  S.  1. 


ELECTROLYSIS.  113 

existing  legal  obligation  arising  out  of  contract  law  or 
usage,  but  it  cannot  create  the  obligation.14 

The  reasonableness  or  propriety  of  the  means  to  be 
adopted  by  electric  railroads  to  lesson  injury  to  gas  pipes, 
water  pipes,  etc.,  is  essentially  an  administrative  inquiry. 
Legislative  in  its  nature  when  considered  and  adminis- 
tered by  the  legislature,  city  council  or  public  service  com- 
mission; administrative  when  considered  and  applied  by 
the  corporation  itself.15 

It  was  decided  that  the  whole  duty  of  the  defendant  is 
to  make  the  damage  as  little  as  possible  by  using  the  best 
means  reasonably  within  its  power,  the  selection  of  such 
means  to  be  left  to  its  discretion,  and  at  its  peril  to  exer- 
cise such  discretion  in  a  fair,  bona  fide  way.16 

79.    Injunction  to  restrain  injury  by  electrolysis. 

The  result  of  this  case  was  that  an  injunction  was 
granted,  enjoining  the  railroad  company  from  continu- 
ing the  injury  by  electrolysis  to  the  complainant's  water 
mains  and  service  pipes,  and  to  be  given  a  reasonable  time 
to  take  such  measures  or  put  in  such  improvement  to  its 
negative  return  as  will  substantially  prevent  injury.  This 
should  be  upon  condition  that  complainant  co-operate 
with  defendant  so  far  as  reasonable  and  proper  in  aiding 
it  to  prevent  or  lessen  the  escape  of  current  from  its  rails 
or  in  preventing  the  escape  of  current  from  the  water  pipes 
in  such  a  manner  as  to  cause  injury  thereto.  And  since 
everything  in  the  disposition  of  a  case  of  this  nature  is  of 

(14)  Atchison,  Topeka  and  Santa  Fe.  R.  Co.,  v.  Denver  & 
N.  0.  R.  Co.,  110  U.  S.  667,  (1884). 

(15)  Spring  Valley  Water  Co.  v.  San  Francisco,  165  Fed. 
Rep.  667-668,  (1908). 

(16)  Peoria  Waterworks  Company  v.  Peoria  Railway  Com- 
pany, 181  Fed.  Rep.  990,  at  1004,  (1910). 

8 


114      THE  LAW  RELATING  TO  ELECTROLYSIS. 

interest,  it  is  to  be  noted  that  the  court  divided  the  costs 
equally  between  the  parties. 

80.    Principles  of  general  application. 

While  it  must  be  observed  that  the  case  just  discussed 
is  an  action  by  the  gas  company  against  the  railway  com- 
pany for  injuries  to  its  underground  mains,  certain  prin- 
ciples were  established  in  the  course  of  the  discussion  that 
modify  to  a  great  extent  some  of  the  principles  that  have 
hitherto  been  considered  more  or  less  applicable  in  adjust- 
ing such  conflicting  franchises.  First  of  all,  it  is  to  be 
noted  that  the  court  held  that  underground  pipes  or  con- 
duits of  a  water  company  are  less  of  a  burden  on  streets 
or  highways  than  railway  tracks.  If  this  is  the  case,  it 
applies  equally  well  to  the  underground  conduits,  of  tele- 
phone and  telegraph  companies.  It  would  seem,  there- 
fore, to  be  established  by  this  decision  that  a  railway  com- 
pany cannot  discharge  its  electricity  into  the  street,  and 
do  injury  to  other  franchise  holders  by  consuming  their 
pipes  through  electrolytic  action.  To  carry  the  principle 
one  step  further,  in  large  centers  of  population,  telephone 
and  telegraph  conduits  will  generally  be  found  under  the 
ground  and  in  those  instances  it  would  seem  that  even  in 
the  absence  of  a  statute  expressly  fixing  on  the  railway 
company  the  liability  for  damage  done  by  electrolysis,  the 
telephone  or  telegraph  companies  as  well  as  the  water 
companies  may  vindicate  their  rights  in  either  a  common 
law  or  equitable  action.  It  may  be  taken  also  as  certain 
that  the  court  will  in  no  instance  define  a  method  by  which 
the  railway  company  or  other  electric  company  must  rem- 
edy the  harmful  condition.  The  courts  have  said  that  it 
is  entirely  within  the  province  of  the  legislature  to  say 
how  the  railway  companies  must  exercise  their  franchise, 
but  that  this  is  beyond  the  province  of  the  courts.  The 


ELECTROLYSIS.  115 

most,  therefore,  that  the  holders  of  other  franchises  can 
ask  from  the  courts  is  to  enjoin  the  continuance  of  a  con- 
dition which  either  amounts  to  a  nuisance  or  causes  irre- 
parable injury.  The  manner  in  which  the  defendant  will 
effectuate  this  will  be  left  to  its  own  discretion. 

81.    Electricity  a  dangerous  agent. 

The  principle  is  becoming  generally  recognized  that 
electricity  must  take  its  place  with  other  agents  recog- 
nized to  be  dangerous  per  s&.  From  this  results  the  propo- 
sition that  the  person  who  employs  electricity  for  his  own 
benefit  is  almost  an  insurer  that  no  harm  will  come  to 
other  individuals  through  its  use.  The  principle  which 
has  sometimes  been  adopted  by  legislatures  is  that  corpor- 
ations which  are  empowered  to  supply  electricity  for  their 
own  benefit  should  do  so  at  their  own  risk  and  only  on 
the  terms  that  they  must  bear  the  loss,  if  damage  is  occa- 
sioned to  an  individual,  who  it  must  be  remembered,  may 
very  likely  have  no  interest  in  the  supply  of  electricity  and 
not  be  a  consumer.17  An  action  was  brought  against 
the  Corporation  of  Manchester,  which  conducts  the 
electric  lighting  of  the  city,  to  recover  for  damage  to 
property  of  the  plaintiff  through  an  explosion  brought 
about  by  the  operation  of  the  system  of  electric  lighting, 
maintained  by  the  defendant  corporation.  The  cause  of 
the  explosion  was  a  leakage  of  electricity  that  had  the 
effect  of  fusing  the  bitumen  in  which  an  electric  main  was 
encased  with  the  result  that  an  inflammable  gas  was  pro- 
duced which  exploded  and  set  fire  to  premises  adjoining 
those  of  the  plaintiffs.  Involved  in  the  decision  of  the 
case  was  the  fact  that  in  Clause  70  of  the  Electric  Lighting 
order  of  1890,  which  was  confirmed  by  statute,  it  was 

(17)     Midwood  &  Co.,  Ltd.  v.  Manchester  Corporation,  L.  R. 
(1905) ;  2  K.  B.  597,  at  page  602. 


Il6      THE  LAW  RELATING  TO  ELECTROLYSIS. 

provided  that  nothing  in  this  order  shall  exonerate  the 
undertakers  from  any  indictment,  action  or  other  proceed- 
ing for  nuisance  in  the  event  of  any  nuisance  being 
caused  by  them.  This  matter  is  of  interest  for  the  reason 
that  there  is  a  general  tendency  in  various  jurisdictions  in 
the  United  States  to  couple  such  a  provision  with  all 
grants  to  companies  using  electricity.  It  is,  therefore,  a 
matter  for  serious  consideration  on  the  part  of  all  com- 
panies which  seek  to  avoid  liability  for  nuisance  on  the 
ground  that  the  statute  authorizes  them,  whether  after 
all,  it  is  a  victory  for  the  company  to  have  the  courts  up- 
hold the  contention  that  the  operation  of  an  electric  line 
is  a  nuisance,  authorized  by  statute.  It  is  to  be  recalled 
that  in  the  rapid  development  of  modern  commerce,  the 
tendency  in  the  early  days  of  this  development  was  to  re- 
gard commerce  and  the  encouragement  of  property  inter- 
ests as  more  or  less  of  a  god,  or  if  not  that,  something 
to  be  cherished  and  fostered.  The  result  has  been  an  ex- 
treme line  of  decisions  that  have  tended  to  exonerate  com- 
panies using  electricity  from  all  the  consequences  of  the 
natural  operation  of  their  plants.  This  produced,  as  it 
was  bound  to  do,  a  reaction  against  the  companies  them- 
selves. For  the  tendency  at  present  is  especially  pro- 
nounced to  specify  particularly  in  all  grants  of  franchises 
that  the  holder  shall  not  be  exempted  from  liability  if  it 
produces  or  maintains  a  condition  that  amounts  to  a  nui- 
sance. It  is,  therefore,  to  the  interest  of  the  company 
becoming  aware  not  merely  of  defects  in  its  system,  but 
of  injuries  resulting  from  its  normal  use,  to  remedy  such 
conditions  as  far  as  lies  in  its  power,  rather  than  to  await 
the  more  or  less  doubtful  issue  of  litigation  taken  to  com- 
pel them  to  perform  what  really  amounts  to  a  duty.  The 
question  raised  by  the  case  under  discussion  was  whether 
the  defendant  could  be  held  liable  as  for  a  nuisance,  irre- 


ELECTROLYSIS. 


spective  of  negligence.  It  was  decided,  first  of  all,  that 
where  the  premises  of  the  adjoining  owner  are  blown  up 
by  an  explosion  brought  about  through  the  agency  of  the 
defendant's  system  of  electric  lighting,  a  nuisance  ex- 
isted. It  was  further  held  that  there  is  underlying,  a  con- 
dition imposed  for  the  protection  of  the  public  upon  an 
undertaking  of  such  a  nature,  which  is  not  yet  in  its  final 
stage  of  development,  and  may  involve  undiscovered  dan- 
gers, which  it  would  not  be  fair  to  throw  upon  the  pub- 
lic.18 It  will  be  seen  that  these  cases  are  driving  a  great 
breach  in  the  wall  of  decisions  which,  like  the  case  of 
Rhoads  v.  Dunbar,  in  Pennsylvania,  throw  out  the  sug- 
gestion, that  those  who  live  in  cities,  must  abide  by  the 
discomforts  of  city  life.  They  must  accept  the  benefits 
with  the  inconveniences.  The  tendency  of  the  modern 
cases,  however,  is  to  abate  nuisances  of  this  character 
wherever  there  is  any  possible  legal  remedy.  The  case 
of  Shelfer  v.  City  of  London  Electric  Lighting  Com- 
pany,19 is  an  instance.  In  the  case  of  Lake  Shore  and 
M.  S.  Railroad  Company  v.  Chicago,  L.  S.  and  S.  S.  Rail- 
way Company,20  the  proposition  was  laid  down  that  the 
business  of  operating  an  interurban  electric  railroad  as 
authorized  by  Burns  Awn.  St.,  1908,  section  5675,  is  not 
a  nuisance  per  se,  but  the  fact  that  the  business  is  a  lawful 
one  is  not  necessarily  a  defense  against  a  charge  of  nui- 
sance, for  a  lawful  business  may  be  so  conducted  from  its 
nature  or  by  reason  of  the  surroundings  or  circumstances 
as  to  become  a  nuisance.  In  that  case,  however,  an  in- 
junction was  denied  under  the  following  circumstances: 

(18)  Midwood  &  Co.,  Ltd.  v.  Manchester  Corporation,  L.  E. 
(1905)  2  K.  B.  597,  at  page  602. 

(19)  Shelfer  v.  City  of  London  Electric  Lighting  Company, 
1895  I  Ch.  287. 

(20)  Lake  Shore  &  M.  S.  Railroad  Co.  v.  Chicago  L.  S.  &  S. 
S.  Railway  Company,  92  Northeastern  989,  (1910). 


Il8      THE  LAW  RELATING  TO  ELECTROLYSIS. 

The  railroad  company  sought  to  enjoin  an  electric  rail- 
way company  from  operating  its  electric  railway  line  on 
its  adjacent  right-of-way  until  it  should  adopt  devices  pre- 
venting the  currents  of  electricity  used  from  interfering 
with  the  use  of  the  telegraph  and  signal  system  of  the 
railroad.  The  injunction  was  denied,  although  the  rail- 
road company  was  the  first  in  the  field.  It  was  held  that 
the  electric  company  not  being  guilty  of  unskill fulness  or 
malice  in  the  construction  and  operating  of  its  line  and 
the  character  of  the  appliance  to  prevent  interference  not 
being  disclosed,  and  it  not  appearing  that  the  railroad 
company  might  not  by  some  inexpensive  method  prevent 
the  annoyance  complained  of,  an  injunction  could  not  be 
granted.  The  doctrine  of  Rylands  v.  Fletcher,  was  con- 
sidered, the  plaintiff  insisting  on  the  proposition  that  elec- 
tricity was  a  dangerous  agent  which  had  been  discharged 
upon  its  premises,  for  which  the  electric  railway  company 
was  liable.  The  distinction  pointed  out  by  the  court  was 
that  the  use  of  electricity  in  the  case  under  discussion  was 
common  to  both  parties  and  both  are  acting  under  legis- 
lative grants.  The  court  held,  citing  National  Telephone 
Company  v.  Baker,21  and  other  cases  of  the  same  nature, 
that  it  seems  to  be  the  consensus  of  opinion  both  in 
England  and  in  this  country  that  where  one  is  acting 
under  legislative  authority  and  within  the  right  thus 
given,  and  reasonably  within  the  exercise  thereof,  using 
care  and  caution  regarding  the  rights  of  his  neighbor, 
any  inconvenience  or  incidental  damage  which  may  arise 
in  the  absence  of  any  negligence  from  the  reasonable  use 
of  his  own  property  will  be  regarded  as  within  the  rule 
damnum  absque  injuria.  The  statement  made  in  the  case 
of  National  Telephone  Company  v.  Baker,  to  the  effect 

(21)     National  Telephone  Company  v.  Baker,  1893,  L.  R.  2  Ch. 
186. 


ELECTROLYSIS.  119 

that  "the  defendants  are  expressly  authorized  to  use  elec- 
tric power  and  the  legislature  must  be  taken  to  have  con- 
templated and  to  have  condoned  by  anticipation,  any  mis- 
chief arising  from  a  reasonable  use  of  such  power,"  has 
been  widely  quoted  and  followed  in  the  United  States. 
Something  may  be  said  in  this  case  for  the  proposition 
that  the  plaintiff  made  no  suggestion  of  any  expedient  by 
which  the  electric  railway  company  could  prevent  the  es- 
cape of  the  electricity,  or  did  not  offer  any  evidence  of  the 
expense  involved  in  making  changes  to  protect  its  own 
line.  Hence,  the  court  further  decided,  following  East- 
ern and  South  African  Telegraph  Company  v.  Cape  Town 
Tramway  Company,22  that  if  the  plaintiff  were  using 
apparatus  so  delicate  that  it  could  be  affected  by  the 
ordinary  and  lawful  use  of  electricity  it  was  bound  at  its 
own  expense  to  protect  it. 

V 

82.    English  cases  of  electrolysis. 

Even  in  the  English  cases,  however,  the  electric  rail- 
way company  or  electric  lighting  company  is  not  held  to 
be  exempt  from  liability  where  electricity  escapes  from 
the  line  of  the  company  and  injures  water  pipes,  or  other 
property  by  electrolysis.  In  the  case  of  Chepstow  Elec- 
tric Light  and  Power  Company  v.  Chepstow  Gas  and 
Coke  Consumers  Company,  penalties  were  imposed  upon 
the  electric  light  company  for  laying  their  electric  line  too 
close  to  the  gas  company's  mains.  The  prosecution  was 
brought  under  section  18  of  the  English  Electric  Lighting 
act  of  1899.  That  act  requires  electric  light  companies 
to  give  notice  before  constructing  new  lines  near  the  mains 
of  gas  companies.  The  case  does  not  state  in  what  way 
the  damage  to  the  gas  pipes  might  arise,  but  it  is  to  be 

(22)  Eastern  &  South  African  Telegraph  Company  v.  Cape 
Town  Tramway  Company,  L.  R.  1902,  381. 


I2O      THE  LAW  RELATING  TO  ELECTROLYSIS. 

assumed  that  electrolysis  was  the  danger  against  which 
the  gas  company  sought  protection.23 

83.    Public  and  private  duties  of  public  service  corporations. 

In  fixing  the  liability  of  companies  using  electricity  for 
damage  due  to  electrolysis,  the  courts  have  made  a  dis- 
tinction between  the  public  and  the  private  duties  of  a 
public  service  corporation.  In  the  case  of  Townsend  v. 
Norfolk  Railway  Light  Company,24  the  court  said :  "An 
electric  street  railway  company,  is,  under  the  terms  of  the 
Constitution  of  this  State,  a  public  service  corporation. 
As  such  it  has  duties  both  of  a  public  and  of  a  private 
nature.  In  the  operation  of  its  cars  in  the  transportation 
of  freight  and  passengers  it  exercises  a  public  duty,  and 
if  an  injury  is  inflicted  on  another  in  doing  what  by  law 
it  may  be  required  to  do,  and  doing  it  without  negligence, 
it  is  damnum  absque  injuria;  and  while  an  electric  rail- 
way cannot  be  operated  without  a  power  house,  still  the 
selection  of  a  site  for  the  power  house  and  the  generation 
of  power  to  propel  its  cars  is  the  mere  private  business  of 
the  company  with  which  the  public  has  no  concern.  Such 
location  is  a  matter  of  indifference  to  the  public,  and,  in 
making  it,  the  company  stands  on  the  footing  of  an  indi- 
vidual, and  is  not  entitled  to  any  superior  immunities. 
The  grant  of  legislative  and  municipal  authority  to  con- 
struct and  operate  its  road  in  a  city,  does  not 
confer  authority  to  locate  a  power  house  where  it 
would  be  a  nuisance,  nor  authorize  the  company  to  molest 
or  to  injure  the  property  of  others  by  the  operation  of  a 

(23)  Chepstow  Electric  Light  &  Power  Company  v.  Chep- 
stow  Gas  &  Coke  Consumers  Company,  L.  R.   (1905)   1  K.  B. 
198,  1904. 

(24)  Townsend  v.  Norfolk  Railway  Light  Company,  105  Va. 
22;  4  L.  R.  A.  (N.  S.)  87,  1906. 


ELECTROLYSIS.  121 

power  house,  although  operated  without  negligence.  If 
injury  to  others  is  inflicted  by  the  operation  of  such  power 
house  the  company  is  liable."  Among  the  damages  for 
which  the  plaintiff  sought  to  recover  in  that  case,  it  was 
alleged  that  the  defendant  railway  company  by  allowing 
the  electric  current  from  the  wires  and  conductors  or  on 
return  circuit  to  escape  from  its  wires  or  returning  by 
ground  circuit  to  run  over  and  though  the  pipes  of  metal 
placed  ....  to  carry  water  and  gas  to  the  houses 
of  plaintiffs,  and  the  plaintiffs'  metal  pipes  thus  acting  as 
conductors  of  electricity  caused  the  pipes  to  be  eaten  up 
and  destroyed.  It  was  held  that  this  declaration  set  forth 
a  nuisance,  for  which  a  recovery  should  be  had. 

84.    Municipality  may  restrain  electrolysis. 

It  would  seem  that  where  a  city  was  operating  for  the 
benefit  of  its  citizens  such  an  enterprise  as  the  furnishing 
of  gas  and  water  to  its  people,  that  it  could  not  be  met 
with  the  defense  by  the  railway  company  that  it  had  au- 
thorized the  injury  and  could  not  restrain  it.  This,  how- 
ever, was  partly  the  conclusion  reached  in  the  case  of 
Dayton  against  the  railway  company.25  In  that  case,  the 
City  of  Dayton  had  authorized  the  railroad  company  to 
propel  cars  by  electricity  in  the  city  streets.  The  city 
operated  its  own  water  supply.  An  action  was  brought 
by  the  city  against  the  railway  corporation  to  restrain  in- 
juries caused  by  electrolysis.  There  were  certain  specific 
allegations  against  the  manner  in  which  the  railway  com- 
pany exercised  its  franchise.  They  were: 

i .  That  the  railway  company  has  not  furnished  a  me- 
tallic circuit,  for  the  return,  to  the  power  house  of  the 
electricity  having  been  used  to  propel  its  cars,  and  hence 
the  circuit  is  thus  left  to  return  as  best  it  can.  It  escapes 

(25)     Dayton  v.  Railway  Company,  26  Ohio,  C.  C.  R.  736. 


122      THE  LAW  RELATING  TO  ELECTROLYSIS. 

from  the  rails  to  the  earth,  and  a  division  of  the  current 
takes  place,  the  water  pipes  of  the  city  receiving  a  part. 

2.  That  the  railway  company  so  imperfectly  and  in- 
efficiently connected  the  rails  of  its  tracks,  that  the  return 
circuit,  in  a  number  of  places,  leaves  the  rails,  escapes  into 
the  earth  and  to  the  water  pipes  of  the  city,  and  thence 
back  to  the  earth  or  rails.    That  at  the  points  where  the 
return  current  quits  the  water  pipes  returning  to  the 
earth  or  to  the  rails,  the  pipes  are  decomposed,  the  metal 
of  the  pipe  removed,  and  there  is  left  simply  the  soft  ma- 
terial of  the  chemical  compound  constituting  the  pipes. 
By  this  action  the  pipes  in  some  instances  have  been  per- 
forated with  holes,  at  other  points  split,  and  in  some  in- 
stances wholly  ruined,  and  in  every  case  weakened. 

3.  That  the  city  has  already  been  compelled  to  dig  up 
and  replace  by  new  pipe,  at  a  number  of  places,  where 
the  pipes  have  been  so  destroyed  or  so  weakened  by  the 
action  of  the  return  current  as  described,  as  to  render  them 
unsafe  and  inefficient  to  carry  the  water,  and  especially 
under  the  pressure  necessary  in  case  of  conflagration. 
That  the  injury  is  still  being  done  and  will  continue  un- 
less the   railway  company  is   required  to  adopt  some 
method  to  prevent  it,  and  hence  is  a  constant  menace  to 
its  own  property  and  the  lives  and  property  of  its  citi- 
zens. 

4.  That  points  where  this  damage  is  being  done  and 
the  extent  of  it  are  not  accurately  known  to  the  city,  and 
cannot  be  known  without  digging  up  all  of  its  pipes; 
hitherto  notice  of  the  injury  being  done  has  been  brought 
to  the  city  by  leaks  from  the  breaks,  and  hence  not  until 
the  damage  in  such  instances  was  completed.     That  the 
injury,  if  continued,  will  still  be  greater,  and  that  it  is 
within  the  power  of  the  railway  company  to  adopt  meth- 
ods for  the  return  of  the  electric  current  after  use  that 


ELECTROLYSIS.  123 

will  wholly  prevent  its  continuance.  That  the  city  ad- 
vised the  railway  company  of  the  injuries  done  and  of 
their  continuance,  and  of  the  city's  inability  to  do  any- 
thing to  prevent  them,  and  demanded  of  the  railway  com- 
pany that  it  adopt  methods  known  to  it  to  prevent  them. 
But  the  railway  company  has  taken  no  steps  and  still 
neglects,  to  adopt  some  method  to  prevent  the  injury 
being  done;  that  the  city  is  without  an  adequate  remedy 
at  law  and  therefore  prays  that  a  mandatory  injunction 
may  issue  commanding  the  railroad  company  to  adopt 
such  methods  as  will  wholly  prevent  the  injuries  to  the 
water  pipes  of  the  city  set  forth  in  its  petition. 

Its  legal  obligation  to  use  reasonable  care  to  prevent 
the  electricity  escaping  from  its  rails  to  the  water  pipes 
of  the  city  is  admitted,  but  it  avers  that  it  has  exercised 
such  care  and  diligence. 

It  also  averred  that  it  proposed  a  method  of  protection 
and  to  remedy  the  claimed  mischief  to  the  city  officials, 
but  this  proposition  was  declined,  and  none  was  ever  pro- 
posed or  suggested  by  the  city.  That  the  petition  of  the 
city  does  not  inform  the  defendant  what  system  the  court 
should  compel  the  defendant  to  adopt. 

The  defendant  admitted  the  knowledge  of  the  system 
of  double  trolley  being  in  use  in  the  cities  of  Cincinnati 
and  New  York,  and  the  conduit  system  in  the  city  of 
Washington,  District  of  Columbia,  but  claims  that  the 
adoption  of  either  system  would  not  obviate  the  danger 
or  protect  the  water  pipes  of  the  city,  so  long  as  the  other 
street  railways  in  the  city  mentioned  operate  with  the 
single  trolley.  It  claims  that  the  conduit  system  is  im- 
practicable and  that  the  double  trolley  would  involve  an 
outlay  of  a  very  large  sum  of  money,  in  the  reconstruc- 
tion of  its  road,  largely  increase  the  danger  to  its  em- 
ployes, requiring  the  use  of  so  large  a  number  of  addi- 


124      THE  LAW  RELATING  TO  ELECTROLYSIS. 

tional  wires  as  to  greatly  increase  the  difficulty  of  hand- 
ling fires. 

At  the  time  the  defendant  equipped  its  road,  the  single 
overhead  trolley  was  thought  to  be,  and  so  pronounced, 
by  persons  experienced  in  the  use  of  electricity  as  a  motive 
power  for  the  operation  of  street  railways,  as  compared 
at  least  with  the  double  trolley,  the  more  simple,  less 
liable  to  disarrangement,  much  cheaper,  less  liable  to  acci- 
dent in  blockading  cars  and  less  dangerous  to  its  em- 
ployes, and  the  most  approved.  There  was  but  one  road 
in  the  United  States  operated  by  the  double  trolley.  It 
was  contemplated  by  the  parties  at  the  time  that,  in  the 
application  of  the  current  as  a  motive  power,  poles  and 
wires  were  to  be  used,  as  the  grant  specifies  the  kind  of 
poles,  the  distance  the  same  were  to  be  set  apart  and  that 
the  location  of  the  same  was  to  be  decided  by  the  city's 
engineer. 

It  was  also  provided  how  high  above  the  surface  of  the 
streets  the  wires  used  to  convey  the  current  to  the  cars 
should  be  suspended.  Therefore,  it  was  contemplated  that 
the  equipment  was  to  be  a  trolley  system.  Part  of  the 
process  of  equipment  was  to  be  under  the  supervision  of 
the  city's  engineer.  The  work  proceeded  and  was  of  a 
character  that  necessarily  required  personal  observation 
of  the  authorized  officials  of  the  city  during  its  progress. 
The  streets  were  torn  up  and  their  use  by  travelers  neces- 
sarily at  times  interfered  with,  and  the  material  necessary 
to  the  equipment  by  a  single  trolley  placed  upon  the  streets 
in  plain  view,  and  at  the  time,  and  since  the  equipment  of 
the  defendant's  road,  several  street  railways  within  the 
city,  under  special  grants  of  the  city,  have  been  equipped 
with,  and  are  now  operated  by  the  same  system.  The 
White  Line  began  operating  with  the  same  system  in 
1888,  and  in  1893  injury  by  electrolysis  to  lead  service 


ELECTROLYSIS.  125 

pipes  was  discovered.  The  testimony  does  not  show  that 
this  injury  was  due  to  the  system;  in  fact,  it  does  not 
seem  to  have  attracted  much  attention. 

It  was  said  that  under  the  grant  to  the  defendant  by 
the  city  to  equip  with  the  single  trolley,  in  the  use  of  that 
system  the  defendant  would  be  liable  only  for  actual  neg- 
ligence. In  granting  such  right  the  city  must  be  taken 
to  have  contemplated,  and  condoned  by  anticipation,  any 
mischief  arising  from  the  reasonable  use  of  such  system.26 

When  a  corporation  is  exercising  delegated  authority 
for  the  public  benefit  by  the  use  of  due  care,  no  action 
will  lie  against  the  corporation  resulting  from  the  proper 
exercise  of  the  authority.27 

85.    Faulty  construction  must  be  remedied. 

The  court  held: 

1.  The  law  authorizes  the  action  of  the  city. 

2.  The  case  presented  does  not  authorize  the  court 
to  require  the  defendant  to  change  to  another  system. 

3.  The  faulty  construction  of  the  defendant's  road 
and  negligent  operation  of  the  same  result  in  a  continual 
damage  to  the  water  pipes  of  the  city  for  which  it  has  no 
adequate  remedy  at  law. 

4.  The  fact  that  other  electric  railways  operated  in 
the  city  by  the  same  system  are  in  part  responsible  for  the 
injury  to  the  city's  water  pipes  constitutes  no  defense  for 
the  defendant. 

5.  The  defendant  will  be  enjoined  from  operating  its 
road  in  the  condition  shown  by  the  evidence,  and  from 
negligently  operating  the  same. 

Jurisdiction  of  the  case  will  be  retained,  to  give  the  de- 

(26)  Telegraph  Co.  v.  Baker,  2  Ch.  Div.  L.  R.  1893,  186. 

(27)  Hudson  River  Tel.  Co.  v.  Railway,  135  N.  Y.  393;  32 
N.  E.  148;  17  L.  R.  A.  674,  1892. 


120      THE  LAW  RELATING  TO  ELECTROLYSIS. 

fendant  an  opportunity  to  show  what,  if  any,  improve- 
ment it  has  made  since  the  cause  was  submitted  to  the 
court,  in  the  way  of  bringing  up  the  construction  of  its 
road  and  operating  the  same. 

86.  Principles  established. 

The  following  principles  were  established  in  this  case : 

A  street  railway  company  which  is  operating  with  a 
single  trolley  system,  under  a  franchise  granted  by  the 
municipality,  is  only  liable  for  damages  resulting  from  its 
actual  negligence  in  the  use  of  such  system.  The  muni- 
cipality will  be  held,  in  granting  such  franchise,  to  have 
contemplated  and  condoned  by  anticipation  any  mischief 
arising  from  the  reasonable  use  of  such  system. 

Where  there  is  a  sharp  conflict  in  the  evidence,  includ- 
ing the  testimony  of  expert  witnesses,  as  to  whether  or 
not  the  present  system  under  which  an  electric  street  rail- 
way company  is  operating  is  a  proper  system,  a  case  is  not 
presented  which  will  authorize  a  court  of  equity  in  re- 
quiring the  company  to  change  to  another  system. 

The  fact  that  other  electric  street  railway  companies 
operating  within  a  muncipality  by  the  same  system  are 
partly  responsible  for  injury  resulting  to  the  city's  water 
pipes  from  electrolysis,  constitutes  no  defense  to  the  com- 
pany against  whom  the  action  is  brought. 

Injunction  will  lie,  at  the  suit  of  a  municipality,  to 
restrain  an  electric  street  railway  company  from  oper- 
ating its  system  in  such  manner  as  to  allow  its  electricity 
to  escape  into  the  ground  and  come  in  contact  with  and 
injure  the  water  pipes  of  the  municipality. 

87.  Summary  of  the  law  relating  to  electrolysis. 

These  cases  represent  practically  the  entire  field  of  the 
law,  in  so  far  as  it  relates  to  direct  trespasses  due  to  the 


ELECTROLYSIS.  127 

use  of  electricity  producing  electrolytic  phenomena.  They 
indicate  clearly,  however,  the  probable  trend  of  authority. 
For  a  direct  trespass,  after  all,  is  a  direct  trespass,  and 
governed  by  the  same  principles  whether  the  harm-produc- 
ing agent  is  electricity  or  gunpowder  or  water.  Professor 
Francis  H.  Bohlen,  of  the  University  of  Pennsylvania,  in 
a  thoughtful  monograph  on  the  rule  in  Rylands  v. 
Fletcher,28  points  out  that  one  might  regard  the  distinc- 
tion drawn  between  substances  whose  dangerous  quali- 
ties give  them  commercial  value  and  those  whose  value 
is  not  so  determined,  as  being  as  "unimportant  as  it  is 
unsound,"  were  it  not  for  the  fact  that  in  the  case  of 
Marsh  v.  Lake  Shore  Electric  Railway  Company,29  one 
of  the  Circuit  Courts  of  Ohio  held  that  electricity  being, 
like  steam,  a  substance  valuable  not  because  of  its  danger 
but  because  of  its  usefulness,  those  using  it  are  not  insur- 
ers of  the  safety  of  others  coming  into  contact  with  it, 
but  should  only  be  "held  to  the  exercise  of  care  com- 
mensurate with  its  deadly  qualities." 

It  is  certain  that  the  case  referred  to  is  not  in  accord 
with  the  trend  of  modern  authority.  Without  discussing 
matters  foreign  to  the  author's  purpose  it  is  sufficient  to 
say  that  electricity  has  come  to  be  regarded  as  an  agent 
so  manifestly  capable  of  producing  harm  that  the  user  is 
held  to  a  degree  of  care  commensurate  not  with  its  com- 
mercial value,  but  with  its  deadly  qualities  or  possibilities ; 
in  other  words,  the  commercial  value  of  a  harm-produc- 
ing agent  has  no  logical  place,  either  in  defeating  a  re- 
covery or  in  mitigation  of  damages. 

It  is  manifest  that  if  the  courts  once  establish  elec- 


(28)  Rylands   v.   Fletcher,   59   University  of  Pennsylvania 
Law  Review  and  American  Law  Register,  at  p.  439. 

(29)  Marsh   v.  Lake   Shore   Electric   Railway   Company,   5 
Ohio  C.  C.  R.  (N.  S.)  405,  1905. 


128      THE  LAW  RELATING  TO  ELECTROLYSIS. 

trolysis  as  a  permissive  harm,  necessarily  incident  to  the 
exercise  of  an  electrical  franchise,  that  not  only  water 
pipes,  but  steel  buildings  and  all  other  metallic  structures 
may  be  destroyed  with  impunity.  The  court  has  refused 
to  take  this  step.  It  has  defined  electrolysis  as  an  action- 
able wrong.  As  to  the  remedy,  the  continuing  injury  has 
been  restrained  in  equity,  and  damages  for  the  injury 
done  have  been  awarded  in  an  action  as  upon  a  nuisance. 

It  should  be  observed  in  conclusion  that  it  seems  imma- 
terial  whether  the  person  asserting  injury  to  himself  is 
a  private  owner  or  the  holder  of  another  franchise.  Re- 
dress has  been  given  in  both  instances. 

In  conclusion,  the  author  submits  his  own  view,  that 
the  tendency  of  the  law  should  be  to  restrict  the  field  of 
permissive  injuries  even  though  authorized  by  law.  It 
is  proper  to  require  one  franchise-holder  seeking  redress 
to  have  his  plant  near  the  maximum  efficiency  dic- 
tated by  modern  scientific  knowledge,  but  it  is  unfair  to 
permit  an  invader  to  make  the  choice  of  the  more  con- 
venient and  less  costly  of  two  methods  of  operation,  and 
answer  the  complainant  by  setting  up  a  statutory  author- 
ity to  maintain  a  nuisance.  The  true  rule  is  beyond  doubt 
that  established  in  the  case  of  the  Peoria  Water  Works  v. 
Peoria  Railway  Company,  supra;  that  the  railway  com- 
pany must  exercise  its  franchise  so  as  not  to  produce 
harm.  To  do  less  than  this  would  be  to  grant  to  one 
holder  of  an  electric  franchise  what  the  courts  have  al- 
ways refused;  a  monopoly  in  the  use  of  the  earth  as  a 
return  circuit. 


PAGE 

ABUTTING  OWNERS, 

change  from  horse  power  to  electric  power  cannot  be 
enjoined  by,  53 

damages  for  injuries  due  to  erection  of  poles,  69 

elevated  railroads  may  not  deprive  of  light  and  access,     17 

injuries  by  electric  railways  must  be  paid  for,  53 

ACTIONS, 

kind  of  relief  open  to  electric  companies  in  case  of 

interference,  83 

BILL  IN  EQUITY, 

Telephone  v.  Railway,  21 

CANADA, 

conflicting  uses  of  electricity,  52 

C.  G.  S.  SYSTEM, 

definition  of,  109 

CITIZENS, 

franchise  holders  distinguished  from,  1 

rights  inviolable,  2 

CONDUCTION, 

telephone  company  may  recover  cost  of  injury  by,  82 

CONFLICTING  USES  OF  ELECTRICITY, 

contrast  of  English  and  American  principles,  73 

DAMAGES, 

not  recoverable  for  reasonable  exercise  of  franchise 
rights,  87 

DANGEROUS  AGENTS, 

electricity  as,  115 

application  of  principle  to  use  of  electricity.  72 

DEFINITIONS, 

electrical  terms,  109 

electrolysis,  111 

highways,  5 

potential,  110 

volt,  110 

DELICATE  TRADE  APPARATUS, 

owner  must  protect  from  interference,  32 

9  129 


130  INDEX. 

PAGB 

DOMINANT  FRANCHISES, 

electric  light  company  considered  as,  70 

DOMINANT  USE  OF  HIGHWAY, 

application  of  principle,  48 

DOUBLE  TROLLEY  SYSTEM, 

elimination  of  interference  by,  13 

preventive  against  electrolysis,  100 

street  railways  not  compelled  to  use,  53 

ELECTRICITY, 

dangerous  agent,  115 

proper  motive  power  for  railways,  30 

ELECTRIC  LIGHT  COMPANIES, 

approach  too  close  to  telephone  wires  may  be  restrained,    42 

damages  for  causing  explosion,  115 

erection  of  guard  wires  may  be  compelled.  42 

facilitation  of  travel  by,  70 

public  contract  as  giving  superior  right,  54 

restraining  interference  with  telegraph  companies,  39 

right  to  destroy  wires  of  private  owners,  66 

voltage  used,  3 

ELECTRIC  POWER  COMPANY, 

the  effect  of  placing  high  voltages  near  low  voltages,      62 

ELECTRIC  RAILWAY  POLES, 

citizens  cannot  compel  removal  by  mandamus,  53 

ELECTRIC  RAILWAYS, 

abutting  owners  cannot  enjoin  erection  of,  53 

city  may  restrain  operation  for  electrolysis,  125 

license  to  operate  condones  harm  from  operation,  126 

nuisance    from    operation    of    power    house    may  be 

abated,  120 

public  and  private  duties  of,  120 
railroad  may  not  enjoin  operation  for  interference  of 

currents,  118 

voltages  used,  3 

ELECTROLYSIS, 

bonding  of  rails  as  remedy  for,  105 
court  cannot  specify  kind  of  remedy,  112 
definition,  92,  111 
determination  of  existence,  94 
difference  of  potential  necessary  to  cause,  95,  97 
electric  railway  may  be  enjoined  from  continuing  in- 
juries by,  125 
fixing  damage  due  to,  96 


INDEX.  131 

PAGE 

injunction  to  restrain  injury  by,  113 

injury  due  to  electrolysis,  accountability  for,  103 

judicial  definition,  92 

law  relating  to,  91 

loss  of  metal  in  water  pipes  by,  95 

metal  consumed  by,  107 

municipality  may  restrain,  121 

not  a  permissible  harm,  128 

permanent  and  continuing  injury,  101 

permanent  injury,  99 

possible  remedies  against,  104 

private  owner  may  restrain  injury  due  to,  120 

remedy  at  law  for,  103 

remedy  for  injury  by,  98 

restraint  of  injury  by  in  England,  119 

summary  of  legal  principles  relating  to,  126 

ELEVATED  RAILROADS, 

burden  upon  highways,  10 

engine  house  may  not  be  erected  if  a  nuisance,  29 

EMINENT  DOMAIN, 

telephone  companies  have  not  the  right  of,  8 

ENGINE  HOUSE, 

injunction  against  erection  if  a  nuisance,  87 

ENGLAND, 

electrolysis — restraint  of  injury  to  water  pipes,  119 
telegraph  and  telephone  cables  protected  from  damage 

by  ships'  anchors,  9 

EQUITY, 

adjustment  of  conflicting  uses  of  electricity  in,  76 

EXCLUSIVE  PRIVILEGES, 

franchises  do  not  confer,  57 
grant  will  not  prevent  later  companies  from  entering 

field,  66 

when  priority  of  franchise  confers,  57 

EXCLUSIVE  RIGHTS, 

holders  of  electric  franchises  do  not  have,  43 

FRANCHISES, 

rights  based  on  contract  or  license,  4 

accommodation  of  conflicts,  43 

conflicts  in  the  exercise  of,  2 

courts  may  not  restrict  use  of,  29 

courts  may  not  specify  manner  of  using,  29 

exercise  may  not  confiscate  property,  87 


132  INDEX. 

PAGE 

first  holder  not  to  be  disturbed,  54 
injury  due  to  lawful  operation  distinct  from  aggres- 
sion, 42 
invasion  by  second  company  forbidden,    .  54 
later  occupant  must  give  way  to  former  if  interference 

is  unavoidable,  56 
nature  of,  4 
persons  harmed  have  no  remedy  if  lawfully  exercised,  30 
priority  in  given  territory  gives  vested  rights,  56 
relative  values  of,  4 
telephone  subordinate  to  railway,  30 
work  to  be  executed  in  authorized  manner,  at  author- 
ized place,  32 

GUARD  WIRES, 

jury  to  determine  if  failure  to  erect  is  negligence,  69 

ordinances  requiring,  44 

HIGH  VOLTAGES, 

effect  of  placing  lines  near  low  voltages,  62 

HIGHWAYS, 

see  Dominant  use  of  highway. 

definition  of,  5 

dominant  use  of,  5 

electric  light  poles  as  burden  on,  70 

public  property,  5 

street  railways  a  burden  in  the  country,  85 

telegraphs  burden,  6 

telephones  burden,  6 

use  for  travel  superior  to  all  others,  52 

HORSE  RAILWAY, 

new  method  of  using  street,  5 

INDUCTION, 

distinction    between   injuries    by    induction    and    con- 
duction, 88 
first  electric  company  in  the  field  may  restrain  inter- 
ference by,  56 
telephone  company's  duty  to  protect  itself  against,  21 

INJUNCTIONS, 

abuse  of  franchise  ground  for,  40 
abutting  owners  cannot  enjoin  erection  of  electric  rail- 
ways, 53 
electrolysis  may  be  restrained  by,  92,  113 
incidental  damages  not  ground  for,  40 
improper  remedy  to  prevent  interference  of  currents,  21 
inconvenience  in  exercising  franchise,  no  ground  for,  39 


INDEX.  133 

PAGE 

invasion  of  franchise  may  be  restrained  by,  39 

private  wires  may  be  enjoined  from  interfering  with 
electric  light  wires,  67 

railroad  cannot  enjoin  interference  with  telegraphs  and 
signals,  118 

telephone  company  cannot  enjoin  street  railway  opera- 
tion in  England,  50 

telephone  wires  may  be  erected  near  electric  light 
wires,  65 

INTERFEEENCE  OF  CURRENTS, 

compensation  to  telephone  company  for  remedying,  77 

double  trolley  system  may  prevent,  29 

first  licensee  may  restrain,  56 

metallic  circuit  may  prevent,  29 

restraint  by  injunction,  55 

storage  battery  may  prevent,  29 

LAND  OWNERS, 

franchise  holder  is  to  a  certain  extent,  40 

MANDAMUS, 

citizens    cannot    compel    removal    of    electric   railway 

poles  by,  53 

erection  of  guard  wires  may  be  enforced  by,  44 

McCLUER  DEVICE, 

properly  equipped  telephone  apparatus,  27 

telephone  companies  to  protect  themselves  by  means  of    26 

METALLIC  CIRCUIT, 

elimination  of  interference  of  currents  by,  13 
necessary  part  of  properly  equipped  telephone  appara- 
tus, 33 
properly  equipped  telephone  apparatus,  27 
telephone  companies  to  protect  themselves  by  means  of,  26 
telephone  company  may  recover  cost  of  installing,  55 

MONOPOLY, 

electric  companies  first  in  the  field  not  entitled  to,  66 

MOTIVE  POWER, 

railways  may  adopt  better,  15 

railways  not  bound  by  choice  of,  14 

MUNICIPALITIES, 

injury  to  water  pipes  bv  electrolysis  may  be  restrained 

by,  122 

operation  of  railways  may  be  enjoined  by,    .  14 


134  INDEX. 

PAGE 

NAVIGATION. 

telephone  and  telegraph  cables  not  to  interfere  with, 
vessels  have  paramount  right  to,  8 

NEGATIVE  RETURN  SYSTEM, 

street  railway  eliminating  electrolysis  by  adopting,  99 

NEGLIGENCE, 

placing  wires  of  high  voltage  near  telephone  wires  no 
evidence  of,  65 

NUISANCE, 

discharge  of  electricity  into  the  earth  as  a,  86 

engine  house  of  elevated  railroad  not  to  be  erected  if  a 

nuisance,  29 

facility  of  travel  no  compensation  for,  28 

railway  operation  may  be  enjoined  if  a  nuisance,  30 

restraint  of  uses  of  electricity  constituting,  28 

things  authorized  by  competent  authority  not  consid- 
ered as,  34 
work  authorized  by  law  cannot  be,                                     32 

ORDINANCES, 

enforcing  guard  wire  ordinance  by  mandamus,  46 

POTENTIAL, 

definition,  110 

PRIORITY, 

monopoly  not  given  by,  43 

railways  or  telephone  companies  not  helped  by,  30 

rights  in  conflict  of  railway  and  telephone,  not  deter- 
mined by,  16 

PRIVATE  PROPERTY, 

franchise  holders  not  to  take,  31 

PRIVATE  USES, 

public  use  superior  to,  66 

PROPERTY  RIGHT, 

franchise  holder  to  be  protected,  40 

electric  company  to  be  protected  from  invasion  of,          58 

PUBLIC  CONTRACTS, 

electric  light  company  given  priority  by,  54 

PUBLIC  NUISANCES, 

private  citizen  may  not  redress,  68 

PUBLIC  SERVICE  CORPORATIONS, 

relative  importance  of  franchises,  2 

PUBLIC  TRAVEL, 

railways  not  to  interfere  with,  11 


INDEX.  135 

PAGE 

telephone  company  cannot  complain  of  improvements  in,     48 

telephones  and  telegraphs  not  to  interfere  with,  8 
RAILROAD  SIGNALS, 

interference  with  signals  no  ground  for  enjoining  opera- 
tion of  electric  railways,  118 
RAILWAY  TRACKS, 

burden  highway  more  than  water  pipes,  100 

public  has  the  right  to  use,  11 
RETURN  CIRCUIT, 

monopoly  in  use  of  earth  for,  forbidden,  33 
RYLANDS  v.  FLETCHER, 

application  of  doctrine  of  conflicts  in  the  use  of  elec- 
tricity, 71 

Francis  H.  Bohlen,  monograph  on,  127 

SERVITUDES, 

electric  light  poles  as  burden  on  highway,  70 

SINGLE  TROLLEY  SYSTEM, 

action  to  enjoin  use  of,  12 

injunction  denied  to  prevent  use  of,  13 

properly  equipped  railway  apparatus,  33 

railways  right  to  use  may  not  be  questioned,  16 

SPRAGUE  SYSTEM, 

lawful  for  propulsion  of  cars,  6 

STATUTORY  AUTHORITY, 

answers  claim  that  franchise  is  a  nuisance,  69 

STATUTORY  IMMUNITY, 

effects  of  doctrine,  51 

STREET  RAILWAY  COMPANIES, 

aggression  by  other  franchise  holders  forbidden,  28 

direct  interference  with  telephones  enjoined,  40 

extent  of  right  to  invade  other  franchises,  40 

STREET  RAILWAYS, 

abutting  owners  may  not  prevent  operation  of,  53 

burden  on  country  highways,  85 

change  of  motive  power  does  not  burden  highway,  6 

courts  cannot  dictate  means  of  preventing  injury,  113 

defective  construction  must  be  remedied,  37 

dominant  franchises  in  streets,  11 

erection  of  guards  over  wires  may  be  compelled,  41 

exclusive  right  to  highway  not  vested  in,  10 

incidental  damages  from  operation  not  recoverable,  34 

liability  for  injury  to  telephone  lines,  82 

license  to  operate  does  not  justify  injury  to  others,  101 


136  INDEX. 

PAGE 

lines  may  not  be  placed  too  close  to  telephone  lines,  37 

negative  return  system,  99 

operation  in  streets  a  proper  use,  81 

operation  may  not  be  enjoined,  21 

public  travel  facilitated  by,  5 

telephone  company  cannot  enjoin  operation  in  England,  49 

STREETS, 

dominant  use  of,  5 

franchise  owners  have  no  easement  in,  17 

public  may  use  part  occupied  by  tracks,  11 

public  property,  5 

railways  have  not  exclusive  use  of,  11 

SUBMARINE  CABLES, 

street  railway  may  not  be  enjoined  from  inducing  cur- 
rents on,  50 
street  railway  may  not  be  enjoined  from  interfering  by 

induction,  35 

trolley  interference  with,  35 

TELEGRAMS, 

telephone  messages  are,  7 

TELEGRAPH  CABLES, 

navigation  must  not  be  interfered  with  by,  8 

ships'  anchors  not  to  interfere  in  England,  9 

TELEGRAPH  COMPANIES, 

service  impossible  near  high  voltages,  3 

telephone  companies  are;  6 

voltages  used,  3 

TELEGRAPH  POLES, 

additional  burden  on  the  highway,  10 

not  servitude  on  highway,  71 

TELEGRAPHS, 

interference  with  railroad  telegraph  no  ground  for  en- 
joining electric  railway,  118 
public  vehicle  of  intelligence,  7 
telephone  embraced  by,  7 

TELEPHONE  CABLES, 

ships'  anchors  not  to  interfere  in  England,  9 

TELEPHONE  COMPANIES, 

duty  to  anticipate  improvements  in  public  travel,  52 

efficient  apparatus  to  be  used,  32 
electric  light  companies  may  be  compelled  to  guard 

wires  of,  42 

erection  of  poks  and  wires  gives  vested  rights,  57 


INDEX.  137 

PAGE 

first  company  in  field  has  superior  rights,  55 

franchise,  no  easement  in  public  streets,  30 

franchise  subordinate  to  rights  of  public  travel,  6 

mandamus  to  compel  street  railway  to  erect  guards,  45 

monopoly  of  use  of  earth  for  return  currents  denied,  34 
paralleling  or  over  building  lines  forbidden  where  it 

interferes,  57 
property  holders,  to  what  extent,  38 
re-adjustment  of  methods  to  prevent  interference,  26 
recovery  of  cost  of  eliminating  interference  of  cur- 
rents by  street  railway,  81 
relief  denied  if  plant  not  in  high  state  of  efficiency,  88 
remedy  where  wires  of  high  voltages  are  placed  too 

near,  62 
service  impossible  near  high  voltages,  3 
street  railways  may  not  be  obstructed  by,  81 
street  railway  must  pay  cost  of  eliminating  interfer- 
ence, 81 
telegraph  company  includes,  6 
voltages  used,  3 

TELEPHONE  MESSAGES, 

telegrams,  7 

TELEPHONES, 

public  vehicle  of  intelligence,  7 

THOMPSON-HOUSTON  SYSTEM, 

lawful  for  propulsion  of  cars,  6 

TRESPASS, 

direct   trespass   by   electrical   companies   may   be   re- 
strained, 89 

TROLLEY  POLES, 

abutting  owners  cannot  enjoin  erection  of,  68 

VOLT, 

definition,  110 

VOLTAGE, 

power  used  by  various  public  service  companies,  3 

WATER  COMPANIES, 

injunction  against  electrolysis  from  operation  of  street 
railway,  93 

WATER  PIPES, 

amount  of  metal  consumed  by  electrolysis,  107 

less  burden  in  highway  than  railway  tracks,  100 


138  INDEX. 

PAGE 

loss  of  metal  due  to  electrolysis,  95 

rapidity  of  electrolytic  action  in,  96 

redress  of  injury  by  electrolysis  in  England,  119 

WIRES, 

erection  of  telephone  wires  near  electric  light  wires 
may  be  enjoined,  65 

location  may  be  controlled,  89 

regulation  of  distance  between  wires  of  different  com- 
panies, 43 

regulation  of  distance  to  be  maintained  between  high 
and  low  voltages,  65 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


A     000  684  634     9 


